journal 19,3_Layout 1

THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

Life After Meth page 8

Washington State LLLT Program page 16

Seven Room Barn page 24

FALL

2014

FREE

SAFE

CONFIDENTIAL

Western Region

Cathy Killian 704.910.2310

Piedmont Region

Towanda Garner 919.719.9290

Eastern Region

919.719.9267

You are not alone. Free, confidential

assistance is available.

The Lawyer Assistance Program (“LAP”) was

created by lawyers for lawyers. The LAP has

been a trusted resource for thousands of lawyers,

judges, and law students

since 1979. We are

committed to helping you

get the help you need.

Every call or email we take

is confidential and is

received by a professional

staff person.

[email protected]

www.NCLAP.org

Hanging on by

a thread?

Update Membership Information: Members who need to update their membership

information must do so by contacting the Membership Department via one of the four

following methods: (1) log on to the Member Access section of the State Bar’s website

(www.ncbar.gov); (2) mail changes to: NC State Bar, Membership Dept., PO Box 26088,

Raleigh, NC 27611-5908; (3) call (919) 828-4620; or (4) send an e-mail to amaner@

ncbar.gov. In deciding what address to list with the State Bar, be advised that this

address will be used for all official correspondence from the State Bar and that mem-

bership information is a public record pursuant to the NC Public Records Act.

THE

NORTH CAROLINA

STATE BAR

JOURNAL

Fall 2014

Volume 19, Number 3

Editor

Jennifer R. Duncan

Publications Committee

G. Gray Wilson, Chair

Dorothy Bernholz, Vice-Chair

Harry B. Crow

Margaret H. Dickson

Rebecca Eggers-Gryder

Forrest A. Ferrell

Douglas R. Gill

James W. Hall

Anna Hamrick

Charles Hardee

Darrin D. Jordan

Sonya C. McGraw

Robert Montgomery

Nancy Black Norelli

Harold (Butch) Pope

Barbara B. Weyher

Alan D. Woodlief Jr.

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. The North Carolina State Bar Journal (ISSN

10928626) is published four times per year in March,

June, September, and December under the direction and

supervision of the council of the North Carolina State Bar,

PO Box 25908, Raleigh, NC 27611. Member rate of

$6.00 per year is included in dues. Nonmember rates

$10.78 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.

www.ncbar.gov

FEATURES

8 Life After Meth—A Journey of

Addiction and Recovery

By Douglas Wilson “Wil” Miller

13Informing the Public in

Upcoming Judicial Elections

By Ashley M. London

14 If it Feels Like Technology is

Moving Faster, It’s Not Just You

By Erik Mazzone

16Washington State LLLT Program:

Improving Access to Justice

By Thea Jennings

18The Bottom Line—Legal Services

is a Good Investment

By Mary Irvine

20 “Living with Blindness has Given

Me a Broader Perspective...”—An

Interview with Attorney Jamie Dean

By John Gehring

24 Seven Room Barn

By P. Richard Wilkinson

27 Poetic Justice

By James DuPuy and ML Philpott

Cover photo courtesy of Lara M. Wilson Photography.

THE NORTH CAROLINA STATE BAR JOURNAL

DEPARTMENTS

President’s Message

Profile in Specialization

Resolution of Appreciation

Lawyer Assistance Program

Paralegal Certification

IOLTA Update

The Disciplinary Department

Trust Accounting

Rule Amendments

Proposed Ethics Opinions

Legal Ethics

BAR UPDATES

In Memoriam

Law School Briefs

Distinguished Service Award

Client Security Fund

Merritt Nominated as VP

Selected Financial Data

Officers

Ronald G. Baker Sr., Kitty Hawk - President 2013-2014

Ronald L. Gibson, Charlotte - President-Elect 2013-2014

Margaret M. Hunt, Brevard - Vice-President 2013-2014

L. Thomas Lunsford II, Raleigh - Secretary-Treasurer

M. Keith Kapp, Raleigh - Past-President 2013-2014

Councilors

By Judicial District

1: C. Everett Thompson, Elizabeth City

2: G. Thomas Davis Jr., Swan Quarter

3A: Charles R. Hardee, Greenville

3B: Debra L. Massie, Beaufort

4: Robert W. Detwiler, Jacksonville

5: Harold L. Pollock, Burgaw

6A: Gilbert W. Chichester, Roanoke Rapids

6B: Lloyd C. Smith Jr., Windsor

7: Randall B. Pridgen, Rocky Mount

8: Shelby D. Benton, Goldsboro

9: Paul J. Stainback, Henderson

9A: Alan S. Hicks, Roxboro

10: Heidi C. Bloom, Raleigh

Nicholas J. Dombalis II, Raleigh

Theodore C. Edwards II, Raleigh

John N. (Nick) Fountain, Raleigh

Donna R. Rascoe, Raleigh

John M. Silverstein, Raleigh

C. Colon Willoughby Jr., Raleigh

Cynthia L. Wittmer, Raleigh

11A: Donald E. Harrop Jr., Dunn

11B: Marcia H. Armstrong, Smithfield

12: Lonnie M. Player Jr., Fayetteville

13: Harold G. Pope, Whiteville

14: John A. Bowman, Durham

William S. Mills, Durham

15A: Charles E. Davis, Mebane

15B: Dorothy Bernholz, Chapel Hill

16A: William R. Purcell II, Laurinburg

16B: David F. Branch Jr., Lumberton

17A: Matthew W. Smith, Eden

17B: Thomas W. Anderson, Pilot Mountain

18: Barbara R. Christy, Greensboro

Robert C. Cone, Greensboro

18H: Richard S. Towers, High Point

19A: James D. Foster, Concord

19B: W. Edward Bunch, Asheboro

19C: Darrin D. Jordan, Salisbury

19D: Douglas R. Gill, Southern Pines

20A: Frederick D. Poisson Jr., Wadesboro

20B: Harry B. Crow Jr., Monroe

21: Michael L Robinson, Winston-Salem

G. Gray Wilson, Winston-Salem

22: Kimberly S. Taylor, Taylorsville

22B: Roger S. Tripp, Lexington

23: John S. Willardson, Wilkesboro

24: Rebecca Eggers-Gryder, Boone

25: Forrest A. Ferrell, Hickory

26: Robert J. Bernhardt, Charlotte

A. Todd Brown, Charlotte

Mark Henriques, Charlotte

F. Fincher Jarrell, Charlotte

Dewitt McCarley, Charlotte

Mark W. Merritt, Charlotte

Nancy Black Norelli, Charlotte

27A: Sonya Campbell McGraw, Gastonia

27B: Ralph W. Meekins, Lincolnton

28: Howard L. Gum, Asheville

29A: Marvin R. Sparrow, Rutherfordton

29B: Christopher S. Stepp, Hendersonville

30: Gerald R. Collins Jr., Murphy

Public Members

Margaret H. Dickson, Fayetteville

Paul L. Fulton, Winston-Salem

James W. Hall, Ahoskie

Staff

Carmen H. Bannon, Deputy Counsel

Betsy C. Barham, Receptionist

Tim Batchelor, Investigator

Kelly Beck, Compliance Coordinator, Membership/CLE

Joy C. Belk, Asst. Dir. Paralegal Certification

Krista Bennett, Fee Dispute Facilitator, ACAP

Michael D. Blan, Systems Analyst/Programmer

Peter Bolac, District Bar Liaison/Trust Account Compliance

Counsel

Elizabeth E. Bolton, Receptionist

Lori Brooks, Admin. Asst., Office of Counsel

Delia M. Brown, Administrative Asst., LAP

Krista E. Carlson, Investigator

Becky B. Carroll, Paralegal

Joseph D. Cerone, Office Manager

Alyssa M. Chen, Deputy Counsel

Margaret Cloutier, Senior Deputy Counsel

Joseph J. Commisso, Director of Investigations

Susannah B. Cox, Deputy Counsel

Luella C. Crane, Director of ACAP

Jennifer R. Duncan, Director of Communications

A. Root Edmonson, Deputy Counsel

Julie A. Ferrer, CLE Clerk

Martha Fletcher, Payroll and Benefits Administrator

Towanda Garner, Piedmont LAP Coordinator

Lanice Heidbrink, Exec. Asst., Administration

Jeffery Hill, Computer Systems Administrator

Leanor Hodge, Deputy Counsel

Debra P. Holland, Asst. Director, CLE

Mary L. Irvine, Access to Justice Coordinator

Tammy Jackson, Membership Director

Katherine Jean, Counsel and Assistant Executive Dir.

David R. Johnson, Deputy Counsel

Sharon Kelly, Events Manager

Barbara Kerr, Archivist

Cathy D. Killian, Clinical Director, LAP

Melanie Kincaid, Paralegal

Suzanne Lever, Asst. Ethics Counsel

L. Thomas Lunsford II, Executive Director

Adam Maner, Professional Organization Coordinator

Beth McIntire, IT Manager

Beth McLamb, Payment Coordinator, Membership

Nichole P. McLaughlin, Asst. Ethics Counsel

Barry S. McNeill, Deputy Counsel

Diane Melching, Admin. Asst., ACAP

Dottie K. Miani, Deputy Clerk of DHC/Asst. Facilities Manager

Claire U. Mills, Accounts Manager, IOLTA

Alice Neece Mine, Asst. Executive Dir., Dir. of CLE,

Specialization, & Paralegal Certification

Robynn E. Moraites, LAP Director

George Muench, Investigator

Denise Mullen, Asst. Director of Specialization

Pat Murphy, Deputy Counsel

Loriann Nicolicchia, Accreditation Coordinator, CLE

Emily Oakes, Attendance/Compliance Coordinator, CLE

Brian Oten, Deputy Counsel

Lisanne Palacios, Accounting Manager

Anne M. Parkin, Field Auditor

Heather Pattle, Administrator, Office of Counsel

C. Fred Patton Jr., Investigator

Wondella Payne, Paralegal

Aaliyah Pierce, Acct. Data Asst., IOLTA

Angel Pitts, Mail/Copy/Accounting Clerk

Jennifer Porter, Deputy Counsel

Evelyn Pursley, Executive Dir., IOLTA

Sonja B. Puryear, Admin. Asst., Investigations

Joan Renken, Admin. Asst., Office of Counsel

Randall C. Ross, Investigator

Whit Ruark, Investigator

Sandra L. Saxton, Public Liaison, ACAP

Fern Gunn Simeon, Deputy Counsel

Jaya Singh, Accounting Asst.

Jennifer Slattery, Paralegal

Susie Taylor, Admin. Asst./Special Projects Manager, LAP

Judith Treadwell, Public Liaison, ACAP

Kristina M. Troskey, Paralegal

Wayne C. Truax, Investigator

Joshua T. Walthall, Deputy Counsel

A. Dawn Whaley, Admin. Asst., Investigations

Edward R. White, Investigator

Brittany A. Wilson, Paralegal

Mary D. Winstead, Deputy Counsel

Christiane Woods, Admin Asst., Investigations

FALL 2014

Prior to June 25 of this year, serving as the

president of the North Carolina State Bar had

been both enjoyable and relatively pain free

except for the amount of time involved. All of

that changed, however, at 5:30 PM that day

when I received a phone call from State Bar

Executive Director Tom Lunsford. During

that phone call, Tom advised me that he had

just received information from

a state senator that House Bill

663 entitled “Commodities

Producer Protection,” which

had crossed over to the Senate

back in May 2013, had been

stripped of its agricultural con-

tent and amended to substan-

tially alter the definition of the

practice of law. The purpose of

that amendment was clearly to

put a legislative stamp of

approval on LegalZoom’s

method of operation in North

Carolina and other places. As I mentioned in

my first column after becoming president,

among other lawsuits the State Bar is involved

in, one is a suit brought by LegalZoom which

involves, among other issues, the question of

whether its activities in North Carolina consti-

tute the unauthorized practice of law. We

learned that HB 663 was to come before the

Senate’s Judiciary 1 Committee at 10:00 AM

the following (June 26) morning.

Knowing that the State Bar should be rep-

resented at the meeting of the Judiciary

Committee, the chair of the Authorized

Practice Committee, Mike Robinson, was

called around 7:00 PM on the evening of the

25th. Without hesitating, Mike graciously

rearranged his schedule and promised to come

to Raleigh and appear at the meeting of Senate

Judiciary Committee 1 to state the position of

the State Bar—that the language of the pro-

posed amendment to the definition of the

practice of law was entirely too broad and

should not be passed. Mike appeared at the

committee meeting and expressed the State

Bar’s position magnificently. Mr. Robinson

told the committee that the State Bar’s interest

and responsibility in the matter is consumer

protection, and that the amendment would

likely have serious unintended consequences

and should not be the subject of precipitous

legislative action. Unfortunately, the amended

bill was voted out of the committee with a

favorable report. At that point it appeared that

the matter would come

before the entire Senate with a

favorable report of Senate

Judiciary Committee 1 on the

following Tuesday. Had the

Senate adopted HB 663 it

would have then returned to

the House, where all that

would have been needed was

concurrence for the amended

bill to be enacted.

Following the meeting of

Senate Judiciary 1, past State

Bar President John McMillan

along with his partner, Michelle Frazier, vol-

unteered to help the State Bar figure out how

to effectively oppose LegalZoom in the legis-

lature. The first two things that I did as your

president were to write all of the members of

the State Bar Council and all past presidents

of the State Bar to advise them of the amend-

ment to HB 663 and its likely consequences,

and to request their assistance in contacting

senators and legislators in an attempt to

thwart passage of the bill. I also called Senate

President Pro Tem Phil Berger to discuss the

matter with him directly. Senator Berger gra-

ciously returned my call (as well as many oth-

ers from lawyers and councilors) and dis-

cussed the matter with me. This bill had not

been on Senator Berger’s radar, and he was

not aware of its pendency until we spoke with

him. He promised to look into the matter

and also requested that the State Bar come up

with proposed alternate language for the bill

that would be acceptable to the State Bar.

Throughout the ensuing days Senator Berger

was very responsive to the concerns of the

State Bar.

Councilors, former State Bar presidents,

and lawyers all over the state began calling

their senators and representatives, and all of

those calls had an effect. The bill was removed

from the July 1 Senate calendar and postponed

until a later time. Ultimately it was sent to the

Senate Rules Committee.

All of this activity in the legislature was tak-

ing place against the backdrop of many other

factors. As noted above, one was the

LegalZoom litigation. The judge assigned to

the case had stated to the parties on more than

one occasion that ultimately it was the charge

of the State Bar to regulate the practice of law

in North Carolina, and that it should exercise

its authority to come to some resolution in the

matter. Of course, the court made very clear

that if the State Bar could not resolve the mat-

ter, then the court would have to do so.

Another complicating factor to the situation

that had to be taken into account was the

Federal Trade Commission’s action against the

North Carolina Dental Board when that

board attempted to prevent nonlicensed indi-

viduals from performing teeth whitening serv-

ices. Its efforts in doing so seem to be clearly

within the purview of the statutory authority

granted to it by the legislature. Yet the Federal

Trade Commission determined its activities to

be anticompetitive and improper, and even

ruled that the members of the Dental Board

might be subject to personal liability for

antitrust violations. The State Bar, of course,

also had its own experience with the Federal

Trade Commission in dealing with activities

surrounding real estate closings back in 2002,

and again in 2010-2011 when the matter was

revisited by the State Bar. Last, but not least, it

was recognized that the chances of

LegalZoom and similar providers being

ordered to cease operation in this state were

virtually nil.

In light of all of the foregoing, the officers,

the Special Litigation Committee of the State

Bar, and the chair and vice-chair of the

Authorized Practice Committee felt that it was

necessary and appropriate that an effort be

THE NORTH CAROLINA STATE BAR JOURNAL

THE PRESIDENT’S MESSAGE

The Fun Comes to a Halt

B Y R ONALD G. BAKER S R .

FALL 2014

made to draft alternate language for consider-

ation by the legislature that attempted to sat-

isfy the State Bar’s obligation to protect the cit-

izens of North Carolina, yet did not run afoul

of federal antitrust law. Such a suggested alter-

native was drafted by the Office of Counsel of

the State Bar and considered by the Officers

and Councilors just mentioned. The language

was thoroughly vetted and ultimately

approved. It was submitted to representatives

of LegalZoom. Various counter proposals

were received from LegalZoom, none of

which were acceptable to the State Bar.

Ultimately, LegalZoom’s representatives were

advised that the language that the State Bar

had proposed was final and the State Bar was

not prepared to agree to anything else.

Following that, a conference was held between

State Bar officials and LegalZoom’s representa-

tives along with LegalZoom’s corporate gener-

al counsel for the purposes of explaining the

language and the State Bar’s reasoning with

respect to it. Ultimately, LegalZoom agreed to

accept the State Bar’s language with two very

minor clarifications, which merely better

explained the State Bar’s intention than the

words that had been used. In doing so,

LegalZoom agreed to support the substitute

language before the legislature, and also agreed

to settle the pending lawsuit by agreeing to

conform its business practices to the new pro-

posed statutory language. That information

was communicated both to the members of

the House and Senate and to various bar

groups around the state. A copy of the final

language of the proposed alternate bill from

the State Bar appears at the end of this col-

umn. Ultimately, the substitute language was

never introduced and the State Bar was

advised that no action would be forthcoming

from the legislature during this session with

respect to the proposed amendments to

Chapter 84 of the General Statutes. Thus, at

present, matters remain status quo.

The vast majority of comments that the

State Bar has received concerning its proposed

substitute language to the LegalZoom legisla-

tion proposal have been favorable. The

notable exception has been the comments

from the real estate bar, particularly that por-

tion that deals with residential real estate clos-

ings. That group has been rather vocal in its

criticism of the State Bar’s proposed alternate

bill language, and they have accused the State

Bar of “caving in” to LegalZoom, of lacking

intestinal fortitude (to put things in language

that is printable in a publication of general dis-

tribution), and of having characteristics that

would serve no purpose to repeat here. While

the concerns of the real estate bar are under-

standable, and largely well-founded, the State

Bar has to deal with realities. First, LegalZoom

has not been enjoined from doing business in

any other state in the United States. In fact, it

was represented to the legislature by represen-

tatives of LegalZoom that their operations

have been approved in 49 states and that

North Carolina is the lone holdout. Of

course, this is not entirely true, but, as noted

above, LegalZoom has not been enjoined

from doing business anywhere else and is not

likely to be enjoined from doing business in

North Carolina. Second, there is a recognized

scrivener’s exception to the definition of the

practice of law that has been recognized by

courts all over the United States, specifically

by the business court in the case of the North

Carolina State Bar v. LienGuard, Inc. and Janis

Lundquist, 2014 NCBC 11. It is clearly legal

to sell legal forms in this state and the court

seemed to recognize in the LienGuard deci-

sion that should LienGuard simply present its

clients with a “fill in the blanks” form and

populate the form with client-supplied infor-

mation without any change or further manip-

ulation, their method of operation would

probably be legal. This is precisely what the

State Bar has tried to mandate in the proposed

statutory language. Some have urged the State

Bar to adopt the settlement that LegalZoom

entered into in South Carolina. It is the view

of the State Bar that the language proposed in

North Carolina is more restrictive than that

approved by the South Carolina Supreme

Court. It is noteworthy that the South

Carolina ruling was not the result of a trial,

but merely the approval of a settlement that

was negotiated between private parties and

LegalZoom, and that LegalZoom paid

$500,000 in attorney’s fees to the private liti-

gants. There is no question that the North

Carolina State Bar will never be able to stop

providers from making legal forms available

on the internet. The best that the State Bar can

hope to do is regulate the practices to the

greatest extent possible for the protection of

the consuming public. That is what has been

attempted by the proposed language. It is

understood that the proposed language will

not suit everyone, and that reasonable minds

can differ as to whether this is the proper way

to go. However, under all of the constraints

that had to be considered, it was felt by the

leadership, the Office of Counsel, and the

North Carolina State Bar Council that this

was the best way to handle what was a chal-

lenging situation.

The officers and staff of the State Bar sin-

cerely appreciate the help and support of the

North Carolina Bar Association and its lobby-

ist Kim Crouch in their efforts with respect to

this legislation. The same is true of the

Advocates for Justice and its president, Danny

Glover. The cooperation of the Republican

leadership in the Senate and the lawyer repre-

sentatives in the House is also appreciated.

Finally, there are really not words sufficient to

recognize the great debt the State Bar owes to

Past President John McMillan and his partner

Michelle Frazier for their efforts on behalf of

the State Bar and the lawyers of North

Carolina in opposing the original amendment.

They have spent countless volunteer hours on

our behalf. Without them, it is hard to predict

where we might be now.

On June 25 being president of the State

Bar went from being enjoyable to challenging

and difficult. It, however, remained rewarding.

This being my last column as president, I

would be remiss if I did not recognize and

express my thanks for the dedicated effort of

all of the officers, committee chairs and vice-

chairs, and councilors during my term as pres-

ident. Anyone who has not served as a coun-

cilor has any idea how time consuming such

service is. Finally, I want to thank the lawyers

of North Carolina for affording me the oppor-

tunity to serve as president of the North

Carolina State Bar. Certainly when I started

practicing law 39 years ago I would never have

predicted that I would ever even be a State Bar

councilor, much less the president of the

North Carolina State Bar. I am deeply hon-

ored to have had the opportunity to serve.

Thank you.

Proposed Amendment that would Except the

Following from the Definition of the Practice

of Law

(2) The production, distribution, or sale of

materials, provided that:

(a) The production of the materials must

have occurred entirely before any contact

between the provider and the consumer;

(b) During and after initial contact

between the provider and the consumer,

the provider’s participation in creating or

completing any materials must be limited

to typing, writing, or reproducing exactly

the information provided by the consumer

as dictated by the consumer or deleting

content that is visible to the consumer at

the instruction of the consumer;

the selection of the product for the con-

sumer; provided, however, (i) operating a

website that requires the consumer to select

the product to be purchased, (ii) publish-

ing descriptions of the products offered,

when not done to address the consumer’s

particular legal situation and when the

products offered and the descriptions pub-

lished to every consumer are identical, and

(iii) publishing general information about

the law, when not done to address the con-

sumer’s particular legal situation and when

the general information published to every

consumer is identical, does not constitute

assistance in selection of the product;

(d) The provider does not provide any indi-

vidualized legal advice to or exercise any

legal judgment for the consumer; provid-

ed, however, that publishing general infor-

mation about the law and describing the

products offered, when not done to address

the consumer’s particular legal situation

and when the general information pub-

lished to every consumer is identical, does

not constitute legal advice or the exercise of

legal judgment;

(e) During and after initial contact between

the provider and the consumer, the

provider may not participate in any way in

selecting the content of the finished mate-

rials;

(f) In the case of the sale of materials

including information supplied by the

consumer through an internet website or

otherwise, the consumer is provided a

means to see the blank template or the

final, completed product before finalizing a

purchase of that product;

(g) The provider does not review the con-

sumer’s final product for errors other than

notifying the consumer (i) of spelling

errors, (ii) that a required field has not been

completed, and (iii) that information

entered into a form or template by the con-

sumer is factually inconsistent with other

information entered into the form or tem-

plate by the consumer;

(h) The provider must clearly and conspic-

uously communicate to the consumer that

the materials are not a substitute for the

advice or services of an attorney;

(i) The provider discloses its legal name and

physical location and address to the con-

sumer;

(j) The provider does not disclaim any war-

ranties or liability and does not limit the

recovery of damages or other remedies by

the consumer; and

(k) The provider does not require the con-

sumer to agree to jurisdiction or venue in

any state other than North Carolina for the

resolution of disputes between the provider

and the consumer.

For purposes of this subsection, “produc-

tion” shall mean design, creation, publication,

or display, including by means of an internet

website; “materials” shall mean legal written

materials, books, documents, templates,

forms, or computer software; and “provider”

shall mean designer, creator, publisher, distrib-

utor, displayer, or seller. n

Ronald G Baker Sr. is a partner with the

Kitty Hawk firm of Sharp, Michael, Graham &

Baker LLP.

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

I didn’t know a lot about meth the first

time I tried it. It wasn’t a common drug

where I was from. I knew it was a stimulant

and I knew it was illegal. And although I

had been employed as a prosecutor in New

York City and Seattle for the preceding nine

years, I had always been a vocal opponent of

the “War on Drugs” and refused to handle

drug cases because of it. That left a danger-

ous void in my knowledge of meth.

From the very first time I tried meth, I

loved it. Nothing had ever made me feel as

happy or alive or confident as meth did.

That’s because no natural experience can

make your brain produce dopamine like

meth can. Dopamine is a neurotransmitter

that makes you experience pleasure.

Normally there are about 100 units of

dopamine in the pleasure centers of your

brain; when you have sex, those levels dou-

ble up to around 200 units. Cocaine can

make your dopamine levels go up to 350

units and keep them there for over an hour.

That’s why cocaine is so addictive. But

when you use meth, your dopamine levels

shoot up to 1,250 units and you stay high

for up to 12 hours. At the same time your

dopamine levels are spiking, meth is also

reducing blood flow to your frontal lobes,

hobbling that section of your brain that

helps you make good and responsible deci-

sions. It’s a dangerous combination—a per-

fect storm of addiction.

Barreling Towards Addiction

By the third time I tried meth, I knew I

wasn’t going to stop, and soon what started

as a weekend ritual of getting high quickly

snowballed into extended periods of use fol-

lowed by debilitating periods of withdrawal.

Meth withdrawal can leave you feeling

impossibly weak, apathetic, and depressed,

sometimes for days. You eat and sleep

uncontrollably and sometimes experience

crying jags or bouts of paranoia for no rea-

son. It can make you feel like you’re losing

your mind.

By December 1997 I couldn’t take it

anymore. I became an addicted, daily sub-

stance user just to avoid withdrawal.

Suddenly, for the first time in my career, I

started showing up late to work. I couldn’t

stay organized anymore. I was losing my

temper for no reason and being really rude

to some of the defense attorneys.

Many people believe it’s easy to figure

out when someone is using meth by their

violent or erratic behavior, but that’s a

myth. Like any drug, individual responses

to meth vary widely. Just as some alcoholics

can maintain the appearance of sobriety

with relatively high blood-alcohol levels,

many meth addicts can do the same with

meth. In many ways, my meth-influenced

behavior was not unlike the behavior of

many trial attorneys who are short-tem-

pered and stressed out, and for the most

part it went unnoticed.

Being a prosecutor certainly made my

Photo courtesy of Lara M. Wilson Photography.

In the summer of 1997 at the age of 35, I fell in love. That relationship exposed me to many new things.

Unfortunately, one of them was methamphetamine.

Life After Meth—A Journey of

Addiction and Recovery

B Y D OUGLAS W ILSON “WIL” MILLER

addiction much more complicated. I was

overwhelmed with feelings of guilt and

hypocrisy. And although I knew I desper-

ately needed help, I had no idea where I

could get it without losing my job.

And I really didn’t want to lose my job. I

loved being a trial attorney and a victims’

advocate. After graduating from Duke Law

in 1988, I started my career in the Brooklyn

DA’s Office, where I focused on prosecuting

sex crimes. Three years later, I took a job as

a trial attorney and supervisor in the Special

Victims Bureau in the Queens DA’s Office.

Then in 1995 I moved to Seattle to work

for Norm Maleng as a King County deputy

prosecutor.

Being a prosecutor was all I had ever

done. I was also really good at it. In nine

years of trying cases back-to-back, I rarely

lost. Trial work felt completely natural to

me —like the thing I was born to do.

Caught at the Courthouse

That all ended one day in March 1998,

three months into my addiction, when a

security guard at the King County

Courthouse asked me to open my briefcase,

which had just gone through the x-ray

machine. It was a common request; I fre-

quently had my briefcase searched when

entering the courthouse. Only this time,

inside there was an Altoids tin containing

drugs and drug paraphernalia—I recog-

nized the Altoids tin. It belonged to me and

my significant other. But I had no idea why

it was in my briefcase, where it would so

obviously be found by security.

In an instant, I saw my life crumble

before my eyes. I was about to lose every-

thing: my job, my friends, and my reputa-

tion. I denied the drugs were mine, but I

knew it didn’t matter. The damage was

done. A few days later, I resigned my job

and a special prosecutor was appointed to

handle the investigation.

As I saw it, I had two choices at that

point: 1) stop using meth and face reality, or

2) keep using a drug that made me insanely

happy, no matter how bad my life became.

I knew if I kept using meth there was a

good chance it would eventually kill me,

but that was no longer a reason not to use it.

My life already felt like it was over. I wanted

it to be over.

But I had a different problem now.

Snorting meth no longer put enough of the

drug into my bloodstream to make its

magic work. I needed to get a lot more in

me, a lot faster. So I started injecting it. At

$25 a shot, that was expensive, and within

a few weeks I was completely broke. Not

surprisingly, that’s also when my relation-

ship ended. Once my significant other was

gone, I felt completely lost.

All my former friends were prosecutors

who couldn’t have any contact with me. All

I had left was meth. However, I was still an

experienced criminal attorney—one who

now knew dozens of meth addicts, most of

whom desperately needed representation

from a lawyer they could trust. You’re prob-

ably thinking, “You were still able to prac-

tice? Didn’t the Washington Supreme Court

suspend you?” No, they didn’t. Because I

had yet to be charged with any crime.

When word went out among the meth

addicts in Seattle that I was going to start

practicing criminal law again, they quickly

became my client base and my friends.

They almost never had money, but they

almost always had meth. My addiction

found a way to survive.

Propped up by the chemically induced

confidence of meth, I walked back into the

King County Courthouse in May 1998,

three months after resigning my job, and

started my career as a criminal defense

attorney. Much to my surprise, I loved it

just as much as I loved being a prosecutor.

That’s when I realized I might still have a

future. I wanted to live, but only if I could

stop using meth.

The Public Learns My Name

So I made a plan: I’d save up enough

money to pay for rehab and get my mortgage

current, then block out enough time in my

schedule to go. It may not have been realistic,

but it was a huge improvement over my ear-

lier plan of just using meth until it killed me.

Unfortunately, my plan got interrupted

when the special prosecutor handling the

courthouse incident decided not to charge

me with drug possession. His decision pro-

voked an angry backlash of editorials and

newspaper articles claiming preferential

treatment by one prosecutor for another—

editorials and articles that named me pub-

licly for the first time as the person involved.

I’m not sure why I wasn’t charged; in retro-

spect, I really wish I had been. If I had, my

case would likely have gone to drug court,

where I would have gotten the kind of life-

saving intervention I desperately needed.

That burst of publicity quickly scared off

all my paying clients. No one wanted to

hire me. Soon I started getting notices from

my mortgage lender threatening me with

foreclosure, and then my phone and utili-

ties were turned off. Even though I was now

no longer facing potential drug charges, my

life kept getting worse and worse. That’s

when I finally gave up trying to save myself.

About a month later, in December

1998—a year into my addiction—my ex

started calling me again. He said he needed

my help getting some meth for a friend of

his. He told me if I could finance the deal,

we could split the profit. It didn’t take a lot

of convincing at that point: I could no

longer see any future, and like most meth

addicts, it wasn’t the first time I had done

something like this. My ex set up the initial

meeting and I obtained the drugs. Over the

course of the next two months, I sold drugs

to his friend three times.

On February 16, 1999, the fourth time

I was supposed to sell his friend drugs, the

friend showed up at my house with a SWAT

team, a battering ram, and a KOMO 4

News team to film my arrest live on televi-

sion. It turned out the “friend” was an

undercover cop and my ex was making

money setting me up for the police.

Well, that was the luckiest thing that

ever happened to me. It was the only inter-

vention I was ever going to get, and it start-

ed the chain reaction of events that eventu-

ally saved my life. Only it didn’t happen

quickly. After my arrest, I used my knowl-

edge of the criminal justice system to stall

my trial for over a year and a half. I still had

my license to practice law, but it was almost

impossible for me to concentrate on the lit-

tle bit of work I had. It was during this time

between my arrest and my trial that I made

my first serious attempt at drug rehab.

Rehab and Picking Up Where You

Left Off

There are two basic schools of drug

recovery programs. One is the 12-step

approach, which uses a person’s faith in

God, or a “higher power,” to help recover

from addiction. The other approach is

based on cognitive behavioral therapy—a

school of psychology that employs a variety

of techniques to help a person understand

their addictive behavior and quit using. My

first rehab was based exclusively on the 12-

step model. I’m a huge fan of the 12-step

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

program; I’ve seen it help a lot of people,

and I have witnessed firsthand the amazing

power of faith.

But I am also a lifelong atheist. So “faith”

just isn’t one of the tools in my toolbox. At

rehab I openly questioned the appropriate-

ness—for me—of a “faith-based” or “spiri-

tual” recovery program. After ten days of

arguing, I was told by the facility director

that I was in the wrong place and that I

needed to leave. I returned to Seattle and

stayed clean for a few months, but by late

autumn of 1999, I relapsed with a

vengeance. It was during that first major

relapse that I learned the truth of one of

many valuable sayings taught to me by the

12-step program: “You pick up where you

left off.” What does that mean? That means

when you’re dealing with addiction, and you

stop using your drug of choice for a while,

then relapse, you don’t get to go back to the

feelings you had during the first few fun

times you used. The drug won’t do that neat

little trick for you anymore. Instead, you go

right back to the crappy feelings you had

just before you quit.

With chronic meth use, you reach a

point where the drug no longer makes you

feel good, because you have literally worked

the dopamine-producing cells in your brain

to death. They’re gone. The meth still gives

you an adrenaline rush, but now the drug

starts to make you crazy—paranoid, delu-

sional, or severely ADD. But you know that

if you stop using meth, you’ll become

incredibly weak and depressed. So every day

you use, you’re choosing between being

crazy and being depressed.

When I relapsed, I became really angry,

distracted, and convinced everyone was out

to get me. My law practice was in shambles.

It was impossible for me to be an effective

advocate when I couldn’t even predict when

I’d be awake. Even with planning, alarm

clocks, and the best of intentions, I missed

court dates and important appointments

because I had stayed awake for too many

days, run out of meth, and fallen uncon-

scious. The judges and prosecutors were

completely fed up with my behavior—and

with good reason. It was obvious to every-

one I had relapsed and that I should no

longer be practicing law.

I continued to use meth right through

my trial in July 2000. I wasn’t surprised

when I got convicted. I expected it. That’s

when the Washington Supreme Court final-

ly disbarred me.

Even after my conviction, I managed to

stay out of custody while my case was on

appeal. I was homeless at that point and liv-

ing on the couches of other drug addicts all

over Seattle. That’s when I finally hit my

rock bottom. I knew that, compared to

where I was at that moment, prison was

going to be a step up for me—at least in

prison I’d have a bed, clean clothes, and reg-

ular meals. Only I was determined not to go

to prison addicted. So I made a new plan to

get clean—a much more realistic plan.

I got myself into a state-funded rehab

(this time based on the cognitive behavioral

therapy model of recovery), moved into

clean and sober housing, and found work as

a housekeeper at a Victorian bed and break-

fast on Seattle’s Capitol Hill. The owners of

the B&B were a woman and her elderly

mother who had followed my story in the

newspapers, felt sorry for me, and miracu-

lously agreed not only to be my employers,

but also my surrogate family as I struggled

through the first years of my recovery. They

were difficult years. I gained 50 pounds. I

was often severely depressed. My brain still

didn’t function well. The cravings for meth

were intense. But at least I had some

income, a job with lots of leftovers to eat,

and the love and support of those two

women who owned the B&B. I knew they

genuinely wanted to see me succeed and it

made all the difference. If it weren’t for

them, I probably wouldn’t have made it.

Serving Time

After successfully completing six months

of rehab and staying meth-free for over a

year, I knew what had to happen next. In

August 2002 I withdrew my case from the

Washington State Court of Appeals, and on

September 22 I turned myself in to the

Department of Corrections to start serving

my sentence.

My situation in prison was precarious.

After all, I was an openly gay former prose-

cutor forced to serve my time in the same

jurisdiction where I had spent years putting

violent felons behind bars. Most of that time

I went unrecognized, and I was fine. But

there were times when I was recognized by

men I had prosecuted for serious violent

offenses, and things got dangerous quickly.

As a result, I spent more than two months

locked up in solitary confinement for my

own protection, in a 9 x 6 foot cell with

bright fluorescent lights that could never be

turned off. There were many days when I

thought I would lose my mind.

Despite that, I will always value the time

I spent in prison, the vast majority of which

was really helpful. In prison I was safe from

temptation during the early fragile years of

my recovery. I could never have afforded the

two-year inpatient drug rehab I needed.

Prison served that role in my life. I met hun-

dreds of men whose lives had been destroyed

by drugs, especially meth. For many of

them, the drug had taken their teeth,

destroyed their skin, and left them with hor-

rible burns from meth lab accidents. Some

had lost their minds.

In prison I learned that this was the

insanity I had helped foster when I got

involved with meth, and this is what I would

become if I went back to using it. It was a

life-changing lesson and an amazing gift.

And although I will always do everything I

can to keep my clients out of prison, I gen-

uinely feel I was lucky to go...and even luck-

ier to have lived through it.

It was also from prison that I started writ-

ing letters to everyone I knew. That’s how I

finally reconnected with family and friends.

When their letters came flooding back in, I

realized I was no longer alone in my strug-

gle, and I began to believe that if I could stay

clean, I just might be able to get my life

back.

Gaining Hope

The Washington Supreme Court

“It turns out you don’t really need “faith” to benefit from a 12-step meeting.

All you really need to do is talk and listen.”

THE NORTH CAROLINA STATE BAR JOURNAL

doesn’t allow disbarred attorneys to work as

paralegals in Washington, but other states

don’t have that rule. So after my release

from prison on September 12, 2004, I

moved my parole from Seattle to

Wilmington, North Carolina, where I

reunited with my family and got a job in a

civil litigation firm as a paralegal and office

manager. I worked there for the next eight

years.

During those eight years, I got involved

with the North Carolina State Bar’s Lawyer

Assistance Program (or LAP, as it’s called).

LAP trained me to be a volunteer and let

me serve as a mentor, monitor, and recov-

ery coach for other drug-addicted lawyers.

LAP also got me speaking at CLEs, high

schools, and community groups about

meth addiction and recovery.

It was through LAP that I started going

to lunches for lawyers in recovery. The

lunches were like 12-step meetings just for

attorneys. I went reluctantly at first, but

after going for a while I came to under-

stand why 12-steppers are so passionate

about their program. It was in those meet-

ings that I learned just how much shame I

was still carrying around with me about the

things I had done to other people while

using meth—things like worrying my fam-

ily and friends, embarrassing my co-work-

ers, disappointing my clients, and worst of

all, enabling the addictions of other

addicts. Those lunch meetings gave me a

safe place to talk about my guilt and

remorse, and the lawyers there helped me

find a way to live with those feelings. I had

recovered from meth addiction long before

I ever went to my first LAP lawyer lunch,

but the things that happened to me at

those meetings finally made me feel like I

was healed.

It turns out you don’t really need “faith”

to benefit from a 12-step meeting. All you

really need to do is talk and listen. And it

was also at those lunches that the other

lawyers convinced me to try and get my law

license back in Washington. I knew with

four felony convictions the chances were

slim, but they had faith I could pull it off.

Reinstatement

It took me almost a year to get ready for

my hearing before the WSBA Character and

Fitness Board in 2009. I was still a total con-

trol freak about all things resembling trials. I

represented myself. The hearing lasted over

seven hours. After a lot of testimony, a lot of

argument, and quite a bit of deliberation,

the Board voted to reinstate me.

After retaking the bar exam, I was offi-

cially reinstated as a lawyer in Washington in

June 2010. Although my original plan was

to then get admitted to the bar in North

Carolina, part of me never gave up on the

idea of moving back to Seattle. As fate

would have it, after 12 years of being single,

I ended up getting married just a few

months before Washington passed marriage

equality by popular vote. I took that as a

sign. So a year ago in June, my husband and

I packed the car and headed west.

I’ll always miss North Carolina, but

Seattle feels like home. It feels like where I

belong. And it feels like the place where my

personal history and skill set can do the

Usage Rate

According to a 2012 National Survey on Drug Use and Health,

funded by an agency of the U.S. Department of Health and Human

Services and administered by Research Triangle Institute, approxi-

mately 1.2 million people in the United States reported using meth.

Environmental Impact

• Areas where meth-making poisonous by-products are dumped

or “dead zones” can contaminate the environment and cost thou-

sands to clean up.

• A small dead zone cleanup can cost $40,000.

• Much of meth waste is highly flammable and explosive, which

makes it a danger for the summer forest fire season.

• Meth waste leaches moisture from whatever it touches, so it is

very harmful to the surrounding environment, whether discarded

indoors or outdoors.

Impact on Economy

• The RAND Corporation released a study stating that meth use

costs the United States between $16.2 and $48.3 billion per year.

• The annual cost of drug-related crimes in the United States is

over $61 billion, according to the US Department of Justice’s

National Drug Intelligence Center

(justice.gov/archive/ndic/pubs44/44731/44731p.pdf).

• A 2010 National Drug Threat Study found that meth and

cocaine cause a majority of drug-related crimes.

Drug Abuse by Attorneys

• The ABA estimates nearly 20 percent of lawyers suffer from

alcohol and substance abuse.

• The national heavy drinkers rate is 26.2 percent of people aged

18 or older, according to the NIH. Attorneys with heavy drinking

problems are twice the national rate, according to the ABA’s

Commission on Lawyer Assistance Programs. (niaaa.nih.gov/alcohol-

health/overview-alcohol-consumption/alcohol-facts-and-statistics;

americanbar.org/groups/lawyer_assistance/resources/alcohol_abuse_d

ependence.html)

METH BY THE NUMBERS

most good for other people struggling with

addiction. But I realize I can’t be a proper

role model for recovery if the people who

need me most can’t see me. So I make sure

I’m visible to them by representing them

and telling them my story. Not surprisingly,

many of my criminal and family law cases

involve issues of addiction.

Recovery from meth is not impossible or

uncommon. In my experience, it often takes a

lot of external support to get through those first

crucial years of recovery. The reason my addic-

tion blew up in such a spectacular way had a lot

to do with how isolated I became from my

sober family and friends, and even more to do

with my false belief that recovery from meth

addiction was not possible. People have recov-

ered from meth addiction, but the stigma

makes it very hard to identify themselves pub-

licly. If recovered meth addicts don’t start com-

ing out of the shadows and showing their

recovery to the world, the lie that you can’t

recover from meth addiction will continue and

be a huge obstacle for those trying to quit.

Getting Help

If you have a problem with addiction, the

NC Lawyer Assistance Program is ready to

provide confidential help. You can meet with a

LAP counselor personally, or LAP can set you

up with a peer counselor (a fellow attorney)

who can speak to you about your options. Best

of all, anything you tell your peer counselor is

confidential pursuant to Rule 1.6(c). Don’t be

afraid to ask for help and don’t be afraid to

accept help when it’s offered.

But what if the problem isn’t with you?

What if someone you care about or work with

is struggling with addiction? What can you do

to help? Those are really difficult situations,

often complicated by a host of other issues. All

I can say for certain is that it’s important that

you don’t enable them. Don’t give them oppor-

tunities, or excuses, or resources that make it

easier for them to continue using. But don’t

give up on them, either. Don’t stop caring

about them. Tell them their substance abuse is

scaring you. Tell them you want them to stop.

And remind them that when they’re ready to

stop, you’ll still be there for them, because you

care about them.

It can make all the difference. n

Douglas Wilson “Wil” Miller is a litigator in

Seattle with a private practice focused on criminal

defense, family law, and personal injury. Miller

devotes much of his spare time to providing pro

bono legal services to the survivors of domestic

violence, and serving as a recovery coach to meth-

addicted lawyers throughout the country. He vol-

unteers with the WSBA Lawyers Assistance

Program. He can be reached at

wil@wilmiller.com.

The North Carolina Lawyer Assistance

Program is a confidential program of assistance

for all North Carolina lawyers, judges, and law

students, which helps address problems of stress,

depression, alcoholism, addiction, or other prob-

lems that may lead to impairing a lawyer’s ability

to practice. If you would like more information,

go to nclap.org or call: Cathy Killian (for

Charlotte and areas west) at 704-910-2310,

Towanda Garner (in the Piedmont area) at 919-

719-9290, or Robynn Moraites (for Raleigh and

down east) at 704-892-5699.

The Washington State Bar Association grants

authorization to the NC State Bar to reprint “Life

After Meth” by Douglas Wilson “Wil” Miller, which

appeared in the June 2014 issue of NWLawyer.

FALL 2014

THE NORTH CAROLINA STATE BAR JOURNAL

record number of attorneys

across North Carolina

carved time out of hectic

schedules to complete the

Judicial Performance

Evaluation (JPE) surveys conducted by the

North Carolina Bar Association—and the

process will continue to create a more

informed electorate.

All candidates for the trial bench in 2014

were evaluated. The JPE Survey Phase I was

conducted in November 2013, covering supe-

rior and district court judges whose terms will

expire in 2014. Phase II was conducted at the

end of the February 2014 filing period, cover-

ing newly installed judges and nonincumbent

candidates.

The combined results for all con-

tested judicial seats are currently available for

public review in advance of the general elec-

tion on November 4, 2014, at

ElectNCJudges.org. The nonincumbent sur-

vey is the only one of its kind in the US.

The state of North Carolina has elected its

judges for more than a century. But if one asks

just about any person on the street the merits

of one judicial candidate over another, the

answers will vary dramatically in degree of

knowledge or ignorance. Judicial election can-

didates receive little consideration by the gen-

eral voting public—despite the critical jobs

performed by members of the bench—

because of a previous dearth of knowledge

available for review before ballots are cast. The

North Carolina Bar Association has sought to

fill that knowledge gap. Its efforts have met

with widespread success, thanks to the input

of thousands of attorney participants.

“Phase I of the JPE survey harvested

31,000 individual responses, and Phase II

(covering the challengers) 7,298 individual

evaluations, which is a magnificent response,”

says Nancy Black Norelli, immediate past

chair of the JPE committee.

The large response enabled the North

Carolina Bar Association to provide extensive

information for voters on nine superior and

district court races that appeared on the pri-

mary ballot on May 6.

The results from the JPE survey are easily

accessible to the public through the website

ElectNCJudges.org. A voter simply clicks on

the county of residence, and all contested trial

court seats on his or her ballot appear in PDF

format, printable and accessible on handheld

electronic devices. Thirty-seven counties are

represented. The 2014 election cycle will

mark the second time members of the public

will have access to the survey results.

Each active North Carolina attorney was

encouraged to evaluate each judicial candidate

with whom the attorney has had a level of pro-

fessional contact in six categories: Integrity &

Impartiality, Legal Ability, Professionalism,

Communication, Administrative Skills, and

Overall Performance. To preserve the integrity

of the feedback, the names and responses from

participating attorneys were kept confidential,

with an outside accounting firm hired to con-

duct the surveys.

“We are grateful to the lawyers across the

state for their participation in both phases of

the survey for the 2014 election cycle,” Norelli

says. “Voters, as we learned during the last

election, are grateful to have access to this

information before they go to the polls.”

The goal for the JPE Committee moving

forward is to make sure that members of the

public are aware of this exceptional resource.

The NCBA will market the website through-

out the election season in print and online

publications, and will also be conducting a

social media campaign to promote the survey.

“We are encouraging members of the

NCBA to talk about the website and the sur-

vey, both at work and in their broader com-

munities,” said Matt Sawchak, the current

chair of the JPE Committee. “It’s important to

remember how the results of judicial elections

have a far-reaching impact on the lives of all

North Carolinians. Helping alert the public to

these survey results is a great way to serve our

fellow North Carolinians and promote an

impartial judiciary.”

This project was made possible by a grant

from the NCBA Foundation Endowment. It

is another example of how North Carolina

lawyers serve the public and our judicial sys-

tem. n

Ms. London, a former professional journal-

ist and 2011 graduate of Charlotte School of

Law, is a member of the faculty at Charlotte

School of Law.

Endnote

1. Complete survey information can be found in two sep-

arate reports posted on the NCBA website, ncba.org,

under the headings, “JPE Survey - Phase I Results” and

“JPE Survey - Phase II Results.” Results for judges who

are not seeking election are not reported.

Informing the Public in

Upcoming Judicial Elections

B Y A SHLEY M. LONDON

FALL 2014

If it Feels Like Technology is

Moving Faster, It’s Not Just You

B Y E RIK M AZZONE

spent my mom’s recent 75th birthday with her helping her use

the Netflix and HBOGo apps on her iPad. Not earthshaking;

there are lots of 70 year olds toting iPads these days. But then

I recalled that when I first started working at the North

Carolina Bar Association—February of 2008, which doesn’t seem so long ago to me – Apple

had not invented the App Store yet. Apps wouldn’t become a part of our lives for another five

months, and now they are part of our cultural landscape.

The past six years have been an incredibly

vibrant time for technology. The stew of

smart phones, cloud-based software, and

ubiquitous internet connections—along

with investments from venture capitalists—

have produced a torrent of products and

services that have transformed the way virtu-

ally all of us use technology in our personal

and professional lives. At the Bar Center dur-

ing breaks in CLE programs, you’d be hard

pressed to find a lawyer not hunched over a

smart phone, pecking out emails and putting

out fires.

These technological advancements do

come with a cost: they sometimes provide

services that bump uncomfortably into our

ethics rules. Because our ethics rules (of

necessity) lag the pace of technological inno-

vation, it can be frustrating to embrace new

services without knowing whether they will

eventually pass ethical muster. That said, the

business justification for embracing these

new technologies is so persuasive that it

remains worth figuring out how and what to

incorporate into your practice.

In this article, I’ll address two of the most

significant technology trends that have

marked the last year or two and which I

believe are likely to impact the next couple of

years as well. These are not companies, serv-

ices, or apps; they are meta-trends in the

technology world that will have a profound

impact on us as technology users. The two

trends are the sharing economy and the evo-

lution of cloud-based software.

The Sharing Economy

The phrase “sharing economy” might be

new to you, but it’s based on an old idea: that

borrowing something expensive (say, a pick-

up truck) from a friend is more efficient than

buying one of your own if you only need it

once in a while.

The sharing economy refers to this old

idea of sharing expensive goods and services,

but puts a new wrapper around it. There is a

burgeoning posse of companies, services, and

apps dedicated to using technology to help

make the sharing of these big ticket items

more frictionless.

It’s easiest to think about it as a time share

condo. Time share condos became popular

because even if you could not afford to pur-

chase a vacation home in a resort area for sev-

Dave Cutler/Illustration Source

eral hundred thousand dollars, most people

could afford to purchase the right to use a

vacation condo a single week each year as a

time share. Along with 51 other purchasers,

they share the costs of the condo.

In the way time shares make vacation

condos more affordable, the sharing econo-

my makes virtually everything more afford-

able: Relay Rides enables the sharing of cars,

AirBnB enables the sharing of spare rooms

and entire residences, and so on.

These examples are consumer-focused,

but the sharing economy is reaching into

services used by law firms as well. Ruby

Receptionists is a phone answering service

that law firms pay for a certain number of

minutes of phone answering per month.

Speak Write is a web-based typing service

that allows users to purchase just the portion

of transcription support needed, paying by

the word. Lawyers have been sharing real

estate for a long time, but in recent years the

rise of executive suite services like Regus has

formalized these arrangements and reduced

costs and increased flexibility for countless

firms across North Carolina. The business

justification for these sharing economy serv-

ices is easy to see: it reduces large capital

expenditures, allows the flexible increase or

decrease of services as needed, and prevents

paying for more support than one needs.

As these sharing economy services

become more popular, ethics guidance has

begun to surface. 2012 FEO 6 (use of time-

shared office address on letterhead and

advertising) cautions that use of a time-

shared address in advertising or letterhead

can’t be misleading, such as implying a deep-

er connection between law firm and commu-

nity than actually exists. 2011 FEO 14 (out-

sourcing administrative tasks) requires that a

lawyer must obtain written consent from her

client before outsourcing tasks such as tran-

scription to a foreign jurisdiction.

The upshot is that for staffing support,

real estate, and virtually any other expensive

purchase a lawyer needs to make, it is worth

looking to see if the sharing economy has

provided a more affordable option. If you do

find some shared resources that work, re-read

the Formal Ethics Opinions and see if you

need to update your client agreements.

The Evolution of Cloud-Based Software

When use of cloud-based software was

ratified for lawyer use (subject to a reasonable

care standard) by 2011 FEO 6, it drew an

invisible line among the practicing bar.

Lawyers quietly sorted themselves into those

willing to let their clients’ confidential infor-

mation be stored on computers outside their

office walls and those who would not. Three

years into the evolution of cloud-based soft-

ware, it has become harder than ever for the

latter group to maintain their prohibition.

While it’s pretty straightforward to avoid

the use of obvious cloud-based applications

like Dropbox, Gmail, and Clio practice

management software, it’s not always so easy

to spot software that relies on cloud technol-

ogy in one fashion or another. Smartphones

and tablet computers have quietly opened

the backdoor to use of cloud software in two

key ways. First, messaging apps, including

text messages, have begun to supplant email

as the primary method of sending text mes-

sages, especially among younger users.

Messaging apps across all major mobile plat-

forms tend to rely heavily on cloud-based

software. Lawyers who eschew storing client

data in cloud-based services like Dropbox

often think nothing of exchanging text mes-

sages laden with confidential information to

the same ethical effect.

Additionally, as functionality has expand-

ed for tablet computers, much of it has rid-

den on an infrastructure of cloud-based soft-

ware. iPad users cheered when Microsoft

finally made its Office suite available for

iPads earlier this year. It instantly improved

the use of iPads for document creation and

editing. Use of those apps (as well as count-

less others used for document creation and

editing) is diminished if not made virtually

unusable without connecting them to an

online storage service like Dropbox or

Windows OneDrive.

It never feels particularly like you are

using the cloud; it just creeps in to help make

the tablet and apps work more seamlessly

together. We should expect it to get harder to

avoid cloud-based software in the future,

both because it will mean forgoing services

that will allow us to serve clients more effi-

ciently, and because it will be harder to tell

when we’re actually using the cloud.

The takeaway here is that if you are dead

set against using the cloud in any capacity for

your professional life, you will need to exer-

cise great diligence to make sure you aren’t

inadvertently relying on a cloud service.

Summary

Things are happening fast in this zone.

The sharing economy and the evolution of

cloud-based software will continue to shape

the landscape for advances that allow us to

practice more efficiently and serve our clients

better. Understanding these trends enables

lawyers to understand the ethical implica-

tions of using the services and apps that rely

on them.

It’s been a remarkable six years. Who

can possibly imagine what the next six will

bring? n

Erik Mazzone is the director of the Center

for Practice Management at the North Carolina

Bar Association where he dispenses practice

management and technology advice, and helps

dispose of leftover food from CLE programs.

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

ashington State is

leading the nation in

licensing nonlawyers

to practice law on a

limited basis with its

Limited License

Legal Technician (LLLT) Program. As the

first state to implement such a program,

Washington breaks new ground and serves as

the model for other states that seem well

poised to take the leap, including California

and New York.

History and Creation of the LLLT Rule

The genesis of this effort arose in part

from alarming statistics regarding the need

for access to legal services among

Washington’s moderate to low income citi-

zens. According to a 2003 Civil Legal Needs

Study, nearly 88% of low income

Washington residents face their legal prob-

lems alone, without the assistance of an

attorney. Often these legal problems relate to

family law, housing, consumer law, and other

basic needs. The LLLT Program seeks to pro-

vide competent, reduced cost legal services to

this underserved population.

In response to the Civil Legal Needs

Study and concerns regarding the unautho-

rized practice of law, the Washington

Supreme Court took the monumental step

of adopting the LLLT Rule—a rule that

would for the first time provide a regulatory

framework for educated and experienced

paralegals to obtain a limited license to prac-

tice law in approved practice areas. In its

order adopting Admission to Practice Rule

(APR) 28, the Washington Supreme Court

stated “[w]e have a duty to ensure the public

can access affordable legal and law related

services, and that they are not left to fall prey

to perils of the unregulated market

place.”(Order at 5-6). With the adoption of

APR 28 in June 2012, the Washington

Supreme Court created a new legal profes-

sional—the Limited License Legal

Technician (LLLT).

The LLLT Board

The Washington Supreme Court created

the LLLT Board (board) to govern the LLLT

Program and to ensure LLLTs are well-trained

in ways that protect the public from the unau-

thorized and unregulated practice of law and

increase access to justice. The board is staffed

and the program is administered by the

Washington State LLLT

Program: Improving Access

to Justice

B Y T HEA J ENNINGS

At the request of State Bar President Ron Baker, the Board of Paralegal Certification has been monitoring efforts in other states to permit limited

licensing of nonlawyers to provide discrete legal services to the public, targeting litigants of modest means. The recent “legal technician” initiative in

Washington State has prompted several other jurisdictions to consider expanding the scope of legal services to be offered by qualified legal technicians as

a form of authorized practice. While the Washington program was just launched this year, the Board will follow its progress to determine whether it

increases access to justice while protecting the public. The program is explained below.

Ron L. Wheeler/Illustration Source

Washington State Bar Association (WSBA).

The board began its work in January

2013. As one of its first actions, the board rec-

ommended domestic relations as the first

practice area in which to license LLLTs, which

the Washington Supreme Court unanimously

approved in March 2013. APR 28 contem-

plates that the Rule would be applied to other

practice areas. Consideration of additional

practice areas will be undertaken during

2014.

The board is acutely aware of its duty to

protect the public and increase access to jus-

tice. For its first year, the board spent long

hours defining the LLLT family law scope of

practice and qualifications for the LLLT

license.

Scope of Practice for LLLTs

Self-represented litigants are frequently

unprepared to advocate for their interests in

court or against an opposing party, often-

times to devastating effects. The role of the

LLLT is to help these litigants navigate the

legal process and to arm them with the tools

they need to adequately represent them-

selves. The limited scope of legal services the

LLLTs may provide to pro se clients includes:

• informing clients of procedures and the

course of legal proceedings,

• providing approved and lawyer pre-

pared self-help materials,

• reviewing documents and exhibits from

the opposing party and explaining them to

clients,

• selecting, completing, filing, and serving

approved and lawyer prepared forms and

advising of their relevance,

• advising clients of necessary documents

and explaining their relevance, and

• assisting clients in obtaining necessary

documents.

There are specific actions LLLTs may not

engage in, such as representing a client in a

court proceeding, negotiating a client’s legal

rights, and discussing a client’s position with

another person or conveying the position of

another party to a client. LLLTs must advise

clients to seek the advice of an attorney for

matters outside the scope of their authority.

Qualifications

During 2013, the board worked consci-

entiously to develop LLLT qualifications

that guarantee both the protection of the

public, and that LLLTs possess the knowl-

edge and skills to practice in their field.

LLLTs will be well educated, trained, and

tested before licensure.

Education

Of great importance to the board is estab-

lishing the credibility of the program by

requiring a rigorous course of study that will

guarantee the competence of legal techni-

cians coming into the profession. LLLTs

must have:

(1) a minimum associate level degree,

(2) 45 credit hours of core curriculum in

legal studies from an ABA approved pro-

gram, and

(3) attended practice area courses devel-

oped by or in conjunction with an ABA

approved law school.

Unanticipated partnerships have devel-

oped between the board and Washington’s

higher learning institutions, which is sure to

contribute to the success and integrity of the

program. Both Washington’s community

colleges and law schools have combined

forces with the board to further the goal of

making the education affordable, accessible,

and academically rigorous.

Representatives from each of the

Washington law schools assisted the board

with developing the domestic relations prac-

tice area courses. What has resulted is a tech-

nologically innovative and collaborative

approach to offering the courses. The 15-

credit hour, three-quarter class will be web-

cast, meaning students can attend in real

time from any location nationwide. The

University of Washington’s School of Law

began offering the series of courses for the

first time in Winter Quarter 2014 for a frac-

tion of the cost of law school. Professors from

all three Washington law schools will assist in

the delivery of the education.

Recognizing that many competent and

experienced paralegals currently in the work-

force may not have completed the LLLT

education, the board approved a limited time

waiver, or grandfathering provision, that

seeks to balance the need to protect the pub-

lic with the great need for access to justice in

our state. The waiver qualifies these individ-

uals for licensure without completing the

required associate degree or core education.

The waiver applies to those who have:

(1) passed NALA’s Certified Paralegal

Exam,

(2) active certification as a certified para-

legal, and

(3) 10 years of substantive law related work

experience supervised by an attorney.

The waiver is not a license to practice as

an LLLT, nor does it waive the practice area

education. The short term waiver period

ends December 31, 2016.

Exam

After completing the LLLT education,

there are two exams to pass: the core educa-

tion and the practice area exams. Given that

LLLTs will advise clients on their legal rights

and responsibilities, the examination will test

on not only general coursework, but also on

the ability to assess a client’s case and recom-

mend an appropriate course of action.

Experience

Given that the LLLTs may set up their

own firms without the supervision of an

attorney, experience ensures LLLTs have the

tools and expertise to provide competent

legal services autonomously. Before entering

the profession, LLLTs must have completed

at least 3,000 hours (18 months full time) of

substantive law related work experience

supervised by a lawyer. The experience must

be gained three years before or after passing

the exam.

Next Steps

The board continues to create the opera-

tional details of the LLLT Program, includ-

ing drafting the Rules of Professional

Conduct (RPC) for LLLTs, which are the

ethical rules LLLTs must abide by. Among

the many ethical situations the board must

grapple with are the types of business rela-

tionships LLLTs may form, the results of

which may well change the landscape of

legal service providers in our state. The

board is also hard at work developing the

domestic relations practice area examina-

tion, which will include multiple choice,

essay, and practice exercise sections. If all

goes according to projected timelines, the

first LLLT examination will be held in

March 2015, with the first LLLT licenses

issued by early Spring 2015. n

Reprinted with permission of NALA, The

National Association of Legal Assistants/

Paralegals, and by Thea Jennings. This article

originally appeared in the January/February

2014 Facts & Findings, NALA's bi-monthly

magazine for paralegals. The article is reprinted

here in its entirety. For further information, con-

tact NALA at nala.org or (918) 587-6828.

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

Despite an increasing need for free civil

legal services, legal services providers have

experienced cuts to every traditional funding

source, both private and public. Since 2008,

state funding has decreased by 40% in North

Carolina, and United Way and IOLTA grants

have dropped by 32% and 30%, respectively.

Further, increased scrutiny facing non-profits

across the country is putting pressure on all to

demonstrate the value of their work, putting

more emphasis on measuring outcomes and

requiring frequent reporting on progress.

As a result, legal services providers nation-

wide have turned to economic impact studies

to build the case for investment in their pro-

grams. Economic impact research provides

insight into the specific impact on a particular

geographic area due to a change in the econ-

omy. In the legal services industry, this

research measures the value of advocacy that

brings new direct benefits into the state—

usually federal dollars—which then stimulate

the economy, resulting in additional indirect

economic impacts.

The findings? Civil legal service providers

undoubtedly spur local economic growth and

save the state money. For every dollar spent

by the state on legal aid, nearly $10 flows into

the economy for the residents of North

Carolina—a 108% return on the state’s

investment in legal services.

The need for legal services far surpasses

available resources of legal services providers

to represent all eligible clients. “While

resources to support legal services have

decreased, the need for legal assistance is

greater than ever,” said George Hausen, exec-

utive director of Legal Aid of North Carolina,

“and our goal is to ensure the basic needs of

people are met, including access to food, shel-

ter, safety, and healthcare.” Further invest-

ment will result in justice for those in need of

legal assistance and economic benefit for all

North Carolinians.

The North Carolina Economic Impact

Study

Released in January, the study “A 108%

Return on Investment: The Economic Impact

to the State of North Carolina of Civil Legal

Services in 2012” found that legal representa-

tion helped North Carolinians gain access to

$9.2 million dollars in new federal benefits,

including food stamps, disability, other cash

assistance programs for low-income families,

and federal tax refunds. Without the help of a

free attorney, the benefits likely would not

have been secured by clients working on their

own. The study also found an additional $8.8

million was awarded to low-income clients in

child support and housing cases. This includes

awards of monthly child support payments

and past due support for struggling single-par-

ent families. Housing awards include protec-

tion of housing benefits, rent abatements due

to problems with the condition of the housing

unit, return of a client’s security deposit, or

avoidance of unreasonable charges by the

landlord.

“This report quantifies what we knew

anecdotally,” said Jennifer Lechner, executive

director of the North Carolina Equal Access

The Bottom Line—Legal

Services is a Good Investment

B Y M ARY I RVINE

ublic support of civil legal services for the poor is

money well spent. A recent report found that advo-

cacy boosted the state’s economy by nearly $49 mil-

lion in a single year. The study, conducted by the

UNC Center on Poverty, Work, and Opportunity in partnership with the North Carolina

Equal Access to Justice Commission, used data from Legal Aid of North Carolina, Legal

Services of Southern Piedmont, and Pisgah Legal Services from cases closed in 2012 to analyze

the organizations’ collective economic impact. The bottom line is quite simple—investment in

legal services benefits the entire state.

THE NORTH CAROLINA STATE BAR JOURNAL

to Justice Commission. “Legal aid is good for

North Carolina—not just for their provision

of legal services to those who would otherwise

be unable to access the justice system, but also

through the economic benefit these services

bring to the state as individuals spend money

at businesses in their communities.”

Flowing from the direct economic bene-

fits, the study also found an indirect impact

of nearly $13.9 million. The indirect impact

provides an estimate of the changes in the

local and state economies when new federal

revenue enters the market and additional

spending occurs. The estimate includes

increases in employment, wages, and business

outputs. While only an estimate of increased

economic activity, the number captures the

benefit to the community as a whole of pro-

viding legal services to those who could not

otherwise afford an attorney.

The report also found that the efforts of

legal services providers to prevent domestic

violence, eviction, and foreclosure generate

cost savings for the state of $17.1 million.

Cost savings represent the amount saved by

the state and local communities in emergency

medical services, mental health treatment,

public health, court costs, unpaid property

taxes, police and fire services, social services,

and other public services. For example, by

preventing 488 foreclosures, legal services

kept many families who were the victims of

mortgage scams in their homes and reduced

local government expenditures to secure

vacant, foreclosed properties.

“Poverty is the greatest challenge facing

the people of North Carolina,” said Gene

Nichol, director of the Poverty Center. “By

advocating for the rights of the poor, the

work of legal services lawyers brings us closer

to equal justice under the law. It also gener-

ates an economic benefit to the state worth

millions.”

Access to Justice Makes Dollars and

Sense

In addition to depriving North Carolina

families of much needed access to the justice

system, lack of civil legal representation leaves

money on the table that could have boosted

the overall economic outlook of the state.

This study, not unlike scores of others done

in states across the country, suggests further

economic gains with increased funding for

legal services given the inadequate capacity of

providers to serve all those who are eligible.

The primary focus of civil legal service

providers is to ensure access to the civil legal

system for all, regardless of ability to pay.

“The financial benefits do not begin to meas-

ure the full value of this work,” said Ken

Schorr, executive director of Legal Services of

Southern Piedmont and member of the NC

Equal Access to Justice Commission.

“Protecting women and children from vio-

lence, keeping families from being separated

or homeless, helping elderly and disabled

people stay in control of their lives, and other

life-changing benefits cannot be measured in

terms of dollars.”

However, in working to meet clients’ legal

needs, legal services organizations gain

immense benefits for the state, reaching far

beyond the individual clients and families

served.

To read the study, visit the North Carolina

Equal Access to Justice Commission, nce-

qualaccesstojustice.org. n

Mary Irvine is IOLTA’s access to justice

coordinator.

FALL 2014

hen Gray Wilson

asked me to inter-

view Jamie Dean, an

attorney with the

Womble Carlyle

firm in Winston-

Salem, I wondered where the point of inter-

est was. Dean graduated Summa Cum Laude

from Wake Forest University and then from

the Wake Forest School of Law, Magna Cum

Laude, and also received a Master’s in

Business Administration. Along the way,

during his student years, he was inducted in

both Phi Beta Kappa and the Mortarboard

National Honor Society. Further, he was a

silver medalist in adaptive rowing in the

2008 games in Beijing. The major law firms

in the United States look to hire, and do hire,

the academically elite, so why is the story of

Jamie Dean any different from the other

honors graduates? All of his accolades are set

forth in his Womble Carlyle profile, with one

omission! Until you meet him you would

not know that Jamie Dean has a disability,

one that he describes as both beneficial to

him and also as an inconvenience. I met with

Jamie and Priscilla (his four-legged co-coun-

sel), and we talked about his life. You see,

Jamie is blind. Thus this interview...

John Ghering (JG): Have you been blind

from birth? What sports have drawn your

interest, and are these sports activities cor-

rectly called “adaptive”? Your sport in the

2008 Paralympic games in Beijing was

“adaptive rowing”. You stated that you do

not consider yourself to be an adaptive per-

son. How so? What does that mean?

Jamie Dean (JD): I was legally blind

from birth due to a disease called retinitis

pigmentosa (“RP”). RP didn’t affect my

visual acuity so much as it reduced my visual

field. I’ve heard people compare my condi-

tion to trying to look at an elephant from six

“Living with Blindness Has Given

Me a Broader Perspective...”—An

Interview with Attorney Jamie Dean

B Y J OHN G EHRING

inches away: the image is clear, but you just

can’t see the whole picture. When I was a

child, my vision did not have a great impact

on my life. I could read, write, ride a bike,

and do most things other kids could do. As

I neared middle school age, my visual field

took its most significant decrease, and that

process continued gradually throughout

high school. By the end of high school, I was

relying on my first seeing eye dog and using

adaptive technologies like a talking comput-

er and recorded books. At present, my vision

is pretty much limited to distinguishing

between light and dark.

Sports have been an integral part of my

life since a pretty young age, due mainly to

the persistent prompting of my dad. He saw

that I needed something from which to draw

confidence and to keep me connected to

other kids my age, so he really pushed me to

try new things and to stay the course when

my athletic endeavors were not going my

way (which was frequent).

I’ve done a mix of “adaptive” (sports cre-

ated or adapted for people with disabilities)

and mainstream sports, but I’ve spent most

time in mainstream competition. When I

came to Wake Forest, I joined the rowing

club, because rowing seemed like one of the

few sports for which sight was not a prereq-

uisite and because the club’s leadership didn’t

seem as daunted as some other clubs about

the prospect of having a blind member.

As for “adaptive” sports, I had never

heard of “adaptive rowing” until my very last

college race. At that race, a former national

team coach spotted me using a white cane

while still in my spandex unisuit (the most

significant drawback to rowing), put two

and two together, and introduced me to the

current national adaptive team director. The

next spring, I was invited to try out for the

national adaptive team and, over the next

three years, I was honored to compete for

Team USA in the United States, Canada,

Germany, England, and, in 2008, the

Paralympic Games in Beijing, China.

“Adaptive” rowing really is no different

from any other form of rowing, except that

all participants have physical disabilities.

There is no difference in the stroke, equip-

ment, or technical aspects of the sport. The

main distinctions between my adaptive races

and my college races before them were that

(1) in my adaptive races, my crew was com-

prised of two men and two women, which is

not done in any other collegiate or Olympic

rowing event and (2) our “adaptive” races

were only 1,000 meters long instead of the

2,000 meter length used in other collegiate

and Olympic races.

I am extremely proud to call myself a

Paralympian. However, before joining the

national team, I never would have consid-

ered myself an “adaptive” athlete as much as

an “adapted” athlete. In other words, I had

been able to compete in the mainstream

despite my blindness. The same is true of

my everyday life. Blindness is the undercur-

rent that informs how I go about accom-

plishing my daily tasks, but it’s not the driv-

ing force behind what I do or why I do it. I

do not define myself by my lack of sight,

and my hope is that others see past the see-

ing eye dog and cool adaptive technologies

to the father, husband, and lawyer behind

them, as well.

JG: You have said that being blind has

benefitted you and that most of the time this

disability is just an inconvenience, some-

times a major inconvenience. Please describe

the benefits and inconveniences.

JD: The most valuable benefit of blind-

ness is perspective. I often tell people that, if

you think I am cocky now, imagine how

insufferable I would be if I could see. That

is more truth than gest. Blindness has

forced me to see the importance of reliance

on other people and not being too proud to

ask for help. In our hyper-independent cul-

ture, this adjusted perspective keeps me

grounded and, in my better moments, gives

me a greater appreciation for the people

around me.

To jump back to your earlier question,

athletics bore out another of the great bene-

fits of blindness. When I started rowing, to

put it bluntly, I was abysmal. I mean, my

performance was shameful. At the first team

time-trial, I was the slowest man, by far, and

slower than two or three of the women.

However, one thing blindness taught me is

that sometimes, to get what you want, you

have to work harder and put in more time

than everyone else. That was the approach I

took. I lifted weights, gained muscle, did

extra workouts, and so on until I caught up

with the others on my team, and eventually

worked my way into the stroke seat of the

varsity men’s lightweight crew. That is where

I remained for my sophomore, junior, and

senior years. I think the perseverance that

fueled my transition was something that

developed in me as a result of my blindness,

not an intrinsic character trait.

As for inconveniences, the two things

that get under my skin more than any others

are not being able to drive and not being able

to read print. There are ways to get around

both of those things, but they are decidedly

annoying to someone like me who likes to

get out and about and to get lost in books.

JG: As for your rowing for the national

team, just how did you fit this extracurricu-

lar activity into your academic schedule?

Also, speaking of schedules, how have you fit

your current community efforts with your

“lawyer” schedule? And what are your com-

munity activities?

JD: I was blessed with gracious law and

business school faculty and administrators

and a gracious employer. I’m sure this grace

was strained on occasion, like the time the

US Anti-Doping Agency showed up to

administer my random drug test while I was

in class, and the deans had to allow their

conference room to be commandeered as a

temporary urine analysis lab. Wake Forest’s

faculty and administrators were also

extremely generous in allowing me to miss

classes at the beginning of my 1L and 2L

years so that I could compete in the annual

world championships that are the qualifying

events for the Paralympics, and they helped

me arrange my course load so that I could

essentially miss half of the first semester of

my 3L year to participate in the Paralympics.

Womble was also very kind in allowing me

to miss many Fridays during my summer

clerkship so that I could travel to spend

weekends training with my team in

Philadelphia and DC. My wife showed the

greatest grace and patience by permitting us

to postpone our honeymoon so that I could

train, and in allowing me to use the second

bedroom in our apartment as a home gym.

It truly took a coordinated effort to get me

to Beijing, and I am very grateful for every-

one who helped along the way.

As for community activities, I don’t think

I am any more involved than most attor-

neys, particularly since becoming a father. I

am a deacon at my church and a volunteer

for the Forsyth County Jail and Prison min-

istry, where I play guitar for chapel services

every few months. I am also a board mem-

ber for a young non-profit that my friends

started to do economic development work

in Uganda. This year I also started teaching

pre-trial practice and procedure at Wake

Forest, which has been a privilege and also a

THE NORTH CAROLINA STATE BAR JOURNAL

lot of fun. By limiting my community activ-

ities to things I really care about, I have

found that making time has never been a

major problem.

JG: Preparing for trial is exhausting and

the trial of a case even more so! I cannot

imagine doing all this without the benefit of

sight.

How do you locate a case or exhibit in

court; how do you pick a jury and how to

you talk to the jury in a “face to face” matter?

JD: As for any lawyer, the key for me is

careful and deliberate preparation. I use

technology to its fullest when I’m arguing a

motion or trying a case. My computer has

special software that can read documents to

me, so I make sure I have all cases, exhibits,

outlines, etc. saved on my laptop whenever I

go to court. I use an earphone so I can read

my notes without my computer reading to

the whole court room. The same computer

software makes online legal research fully

accessible, so I can use Lexis and Westlaw

just like anyone else. With the proliferation

of wireless internet access, including in many

court houses, there is very little I cannot

access from my laptop.

Jury interactions are a different animal

and something I am still figuring out. I think

walking in with a cute dog is a good start. I

also think that blindness can be a humaniz-

ing factor that differentiates me from the

other blue and gray suit clad stiffs and helps

the jury see me as a real person. Rather than

hide my blindness, I have tried to address it

in a light hearted way at the outset of my tri-

als to put the jury at ease and eliminate dis-

tractions as we move on to what really mat-

ters. For example, at the beginning of voir

dire in one trial, I reminded the jury that

“Y’all have seen my four-legged co-counsel,

so you know that raising your hand and

waiting for me to call on you isn’t going to

do any of us much good.” That elicited a

chuckle, accomplished the more important

objective of securing the jury’s cooperation

during the voir dire process, and broke the

ice so that the jurors could get past my

blindness and my dog and focus on the case.

Preparation also helps, particularly in orient-

ing myself to the courtroom, witness stand,

and jury box so that, even if people are silent,

I can fake eye contact well enough to keep

things from becoming too awkward.

This is not to say there have never been

any mishaps. In the above-referenced trial,

for example, I was pretty embarrassed at the

close of voir dire by a Batson challenge that

I did not anticipate. I realized, only after the

opposing counsel stood up and began pas-

sionately arguing his motion, that I had no

idea what the racial composition of my jury

pool even was, including those who had

been excluded. That was a mistake that

mostly resulted from being a rookie, but

blindness certainly did not help. In another

trial, one of my colleagues walked an exhib-

it up to the witness stand while I was cross-

examining an expert. After what I thought

was a pretty effective cross based on the

exhibit, I confidently instructed my col-

league that he could step down, only to

realize when he put his hand on my shoul-

der a second later that he had quietly

returned to our table some minutes earlier.

Fortunately, another thing blindness has

taught me is that, sometimes, the only thing

to do is enjoy a laugh at your own expense

(which is what I did along with the rest of

the courtroom).

JG: Modern day computer science must

be a great help (necessity?) to you, but it

takes more than a computer to try a case.

Exactly how does the computer work for

you? What are the computer programs

which allow you “to see” what you are doing?

JD: The main computer program I use is

called JAWS. In essence, it speaks every-

thing that is written on the screen, includ-

ing documents, websites, email, etc. It

enables me to perform legal research and

draft documents the same way any other

lawyer would. Another crucial asset I’ve

been fortunate to have is an excellent sup-

port staff, including the assistants I’ve

worked with and our firm’s team of word

processors. Together, they scan and convert

paper documents or electronic documents

that JAWS can’t read into accessible formats,

so that I can read every part of the case file.

The other piece of technology that I’ve

become dependent upon, like many others,

is my iPhone and its built-in accessibility

software. I use my phone for everything

from emails to reading to looking up cases

and rules in court. More than a cool gadget,

the iPhone has actually been a great equaliz-

er in access to information for the blind.

JG: Part of the Christian faith requires

the faithful to care for the “widows and

orphans”. You and your wife adopted two

children from Ethiopia and now are expect-

ing a biological child. Before the adoption of

the children, did you have any special ties to

Ethiopia? Please tell us about fatherhood and

your family life.

JD: My wife and I felt called to adoption

before we knew one another, and we dis-

cussed adoption early on in our relationship.

Within our first year of marriage, we decided

to adopt first and try for biological children

later, which we thought would enable us and

our extended families to focus on connecting

CONTINUED ON PAGE 53

FALL 2014

Dean with his teammates on the podium at the 2008 Paralympic Games in Beijing, China.

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

The rusty neglected hinges made a squeal

as Frankie yanked open the sagging rough-

board rectangle that served as a door into

Uncle Otha’s seven room barn. You had to

squat and kinda crabwalk to get into the

opening of any tobacco barn, and this one

was especially low. The smaller and lower the

door, the less heat you’ll lose, and this tall of

a barn needed all the heat it could hold.

Frankie stepped sideways over the high sill

and ducked into the barn.

His steps caused dust to rise from the

floor of tobacco talcum, making the air rich

with the intoxicating smell of flue-cured

tobacco. Dust particles hung suspended in

the shafts of sunlight leaking through the

chinks in the walls, narrow strips of visibility

crisscrossing the shadows up high in the

barn, making a ladder of light that funhouse

mirrored the set timbers used to hang the

sewn sticks of just-picked tobacco; they too

laddered above across the vast empty space

created by four simple and tall log walls.

Frankie breathed a big gulp of dust, aroma,

and nostalgia.

This was Uncle Otha’s barn, once consid-

ered not only the biggest tobacco barn in all

of Wake County, but at the time also one of

its tallest structures as well. From the vent

window at the very top, you could see both

the Knightdale fire lookout tower—looking

like a project from Frankie’s brother’s Erector

set—and the new Holiday Inn high-rise in

Raleigh, which was shaped like a mailing

tube with balconies and supposedly copied a

famous building in Hollywood. More

impressively, from those two buildings you

could unmistakably see the shiny top of

Uncle Otha’s barn. Frankie used to brag

about that at school when he was younger,

and actually saw it was true once when he

visited Raleigh with his pa. They had taken

the elevator in the hotel to the top floor and

looked out a hallway window. Way in the

distance was Otha’s flashy tin roof.

While all of the Piedmont’s tobacco farms

were dotted with log curing barns, the usual

barn was only about two stories tall.

Conventional wisdom held that the dry heat

from the flues—literally greenwood fires in

ground level hearths before the gas company

set up in Wendell—would lessen by the time

it rose much higher, hence failing to dry or

“cure” the tobacco hung at the higher levels.

Barns were about 16 by 16, and were divided

into four parallel “rooms.” Frankie was con-

fused when he was little because these

“rooms” don’t have walls and as such aren’t

really rooms at all. Each room was defined by

the ladder of eight timbers crossing from one

side of the barn to the other, each timber

about 30 inches directly above the one below

it and spaced about four feet apart from side

to side. Each level of cross timbers would

support the ends of the long, roughhewn

tobacco sticks laden with sticky, heavy, ripe

green-gold leaves—the leaves tied on by

hand when Frankie was little, but he remem-

bered the carnival atmosphere the day his pa

and uncle came home pulling a brand spank-

ing new Holland stitching machine, an

immensely labor saving machine part con-

veyor belt, part industrial seamstress, and

part magic to Frankie. The loaded sticks

would travel on the conveyor through the

stooped door to the floor man inside, usually

both tall and strong and frequently also the

crew boss, who then handed up one end of

the heavy tobacco stick—reaching as high as

he could—to one of the hangers clambering

above. The hangers were agile and strong

teenagers who flew monkeylike up and down

the wide-spaced ladder of crosslogs, filling

the top tier in the first room by squeezing as

many fat, loaded sticks as they could, side-

by-side on each level. Good hangers would

flatten themselves against the wall to force in

a few more sticks, cramming the space with

as much tobacco as possible. Then they

would move down a level and start to fill the

next tier. Once that room was jammed full

all the way to the bottom rung, the process

would start again at the top in the next room.

Sometimes a barn monkey would lose his

grip and drop a loaded stick, making the

floor man dodge, curse, and threaten. They

were heavy enough to cause serious injury,

especially when dropped from on high.

Frankie’s pa once said he thought you could

kill a man if you dropped a stick on him

from the top tier of Otha's barn.

For although you might see a rare six

room barn, proudly built eight feet wider but

no taller by some proud, successful (and

some unsuccessful yet still proud), scratch-

dirt farmer—usually placed right by the road

so everyone would see and hopefully draw

the right conclusions of prosperity and ambi-

tion—Otha’s barn was a very unique “seven

rooms,” almost twice as high as any other.

Oh, the Broadwells claimed an “eight room

barn,” but everybody knew it was really only

two four room barns built side-by-side, shar-

ing a common wall. And instead of roadside,

Otha built his barn tucked back into the

trees behind his house, ostensibly to use the

natural shade for his barn workers, but hav-

ing the subsidiary effect of making his barn

look even taller as its sheet metal roof tow-

Seven Room Barn

B Y P. R ICHARD W ILKINSON

FICTION WRITING COMPETITION - FIRST PRIZE

The Results Are In!

This year the Publications

Committee of the State Bar sponsored

its 11th Annual Fiction Writing

Competition. Fifteen submissions were

received and judged by the committee

members. The submission that earned

first prize is published in this edition of

the Journal.

ered over the pines. Like the six room farm-

ers, Otha enjoyed all the envy of his peers,

but in the trees he was free from their sins of

obvious pride and showmanship.

Otha had hit upon the idea of a taller

barn when we first got LP gas for the barns.

Ignoring the local naysayers—including two

professors from NC State who came out at

the request of “concerned neighbors”—

Frankie’s uncle dropped a bunch of tall

straight pines one winter and started build-

ing his barn the next. (“Goddam engineers,”

muttered Uncle Otha.) Using woodstove

pipe, he built tall chimneys that rose beside

and anchored to the walls, and that carried

heat almost all the way to the top. And

though technically it still only had four

“rooms,” they were very tall. Otha’s barn was

exactly three-quarters taller than most so, as

he figured it, the barn held seven rooms

worth of tobacco. Instead of eight hanger

levels, there were 14.

Frankie looked up again at the ladder of

cross timbers and he remembered attempt-

ing to climb it while neglected one hot after-

noon when he was just six. Using the gaps in

the log walls as toeholds, he made it all the

way to the second level before falling and

breaking his arm, landing on one of the sheet

metal covered gas burners installed on the

dirt floor of the barn. He tasted some bitter-

ness now at that memory, as he not only

broke his arm, but he also got a whipping for

wandering away, and even worse, his pa

never let him work in the barns when he got

older. Instead, he was a field worker—he

spent all day every day but Sunday out in the

hot North Carolina sun all summer long.

Frankie was adept at the manual field

work: the plugging and planting; the hoe-

ing and weeding; laying endless rows of

irrigation pipe; breaking out the flowering

tops and suckers that would limit broadleaf

growth; and “priming,” the term used for

harvesting the leaves by hand when they

were at their prime. Yet he wasn’t very

adept at much else. His pa’s attempts to

teach him to operate the tractor were disas-

trous—he still couldn’t drive. Although an

enthusiastic reader, he did poorly in school

and was slow to pick up on things in gen-

eral. Mostly ignored in school—by teachers

and peers—he had never held any job but

farming right here, and he still lived at

home with his ma and uncle. He knew he

was different and it had made him shy and

friendless. It was the main reason why he

spent so much time alone in the barns now

that they weren’t used.

Despite banishment to the field, that’s

not to say the young Frankie never went to

the barns when they were used. For 16 years

he would accompany his pa in the evenings

after supper to check on the barns, making

sure the burners were all lit and adjusting the

heat to maximize the curing process. On

crisp fall dawns he would help load the cured

tobacco onto a flatbed trailer, the humidity

just right for keeping the leaf in “order”—

meaning supple and not brittle—so it could

be handled. Oftentimes the field hands

would ride in on the last trailer of primed

tobacco, and hang out in the shade while the

barn hands would sew and load the last of

the sticks. His first (and only) kiss was in this

tobacco barn, the lucky girl the skinny 15

year old sister of the barn crew boss. Otha’s

barn was where Frankie came to hide when

he wanted to be alone; it’s where he came to

cry when his brother died, and when his pa

died. He had lots of memories of this barn.

He had not always lived at his uncle’s.

Although the brothers farmed together,

Frankie’s immediate family used to live on

the adjoining farm, but they had lost it dur-

ing the estate battle after his grandpa on his

mother’s side died and his ma’s sister forced

the sale of everything. (“Goddam lawyers!”

cursed Uncle Otha.) They had lived and

farmed with his father’s brother ever since.

Frankie knew nothing but farm life: wide

open spaces, trees, animals, and tobacco. He

couldn’t imagine living anywhere else. The

farm was his sanctuary, the barn his solitude.

He always came here when he was upset, so

it felt right to come for one last visit.

The burners were all gone now, scavenged

for scrap metal or used to turn old cut up fuel

tanks into pig cookers. The log barn had set

empty for years, and Frankie suspected he

was the only one who went inside anymore.

The barns were no longer used because Otha

had switched to metal automated curing

sheds in the 80s, a necessary evolution need-

ed to use the automated tobacco harvester.

The harvester eliminated the need for field

laborers, who had gotten harder and harder

to find each year. Frankie remembered the

various groups of workers from over the

years: when he was a child they had always

been black (“We’re supposed to call them

Negros,” sneered Uncle Otha); when he was a

young teen the blacks didn’t want to farm

anymore so his pa hired a bunch of teenagers

from the nearby trailer park (“Watch out for

the white trash stealin’ from us,” growled Uncle

Otha); and then when the trailer park crew

grew up and drifted away, the farm hired

migrant workers from Mexico. (“And when

the crop is in, they’ll go back to where they’re

from!” predicted a smiling Uncle Otha.)

Frankie’s pa had never warmed to his

brother’s tall barn theories, and usage proved

his caution well placed. It used more gas than

two four room barns would, and even then

getting a uniform cure was challenging. Most

days during harvest they would fill two barns

with fat loaded sticks. Eight rooms of tobac-

co was plenty of work for one day, especially

when you were pacing yourself for eight

weeks of that work at six days a week. So in

theory a seven room day should be shorter,

but it wasn’t. The extra height meant an extra

barn monkey was needed, which meant one

less primer in the field. Fewer primers slowed

the picking; climbing up and down the tall

ladders with heavy loads slowed the barning.

Frankie’s ma would sometimes call the great

old barn Otha’s Folly or the Terrible Tobacco

Tower, but Frankie noticed she never did

when Otha was around.

Sadly, this great old barn—in fact the

whole farm—would soon be history. The

location of the new outer bypass around

Raleigh was announced and it was coming

right through Otha’s house. (“Goddam

bureaucrats!” roared Uncle Otha.) Frankie

was visiting the barn one last time as he, his

ma, and Uncle Otha cleaned and sorted and

readied to move to some house in a subdivi-

sion with a tiny yard. No one was excited or

happy about the move, least of all Frankie.

Everything was packed. Today was the last

day any of his kin would live on this spot.

The loss left him feeling worse than anything

before. The farm was always the one constant

he could count on, even when other stuff let

him down or left him bewildered. Now it

would be gone.

Frankie felt truly lost and aimless. His

feelings of grief and despair had grown over

the last years, the bad events coming one

after the other, no gap in between long

enough to have mourned and evolved, but

instead each tragedy overlaying the last until

assimilating all into a single giant chest-press-

ing weight he never seemed to shake. Losing

the farm wasn’t just the proverbial last straw,

but instead was like being crushed by a giant

bale of hay dropped from a plane. He didn’t

know what to do.

THE NORTH CAROLINA STATE BAR JOURNAL

His ma tried hard to convince Frankie to

use this opportunity to start a new life, to

strike out on his own. He needed to find a

job. He needed to stop depending on her;

she could already see her next few years

would be spent caring for the aging Otha.

(“No goddam drool-chinned nursing home!”

raged Uncle Otha.) Even the pastor at

church had pulled him aside to urge Frankie

to let go of the past and move into the future.

Assuming he could and assuming he wanted

to, Frankie wasn’t even sure how. Where does

one start when starting over?

Frankie looked up at the cross timbers.

Now that he was grown, the first beams were

head high, causing him to duck as he moved

around. He tugged on one, feeling its

strength, and made a decision. Maybe here is

where you start over. Today would be very

different, and not just because he was mov-

ing. Today he would have the courage to do

what escaped him many times since the bro-

ken arm. Today he would climb to the top of

the seven room barn.

The first tier was easy. It was no higher

than standing on the back deck of the house,

and it took little effort to kick off the floor

and wall and scramble up. He stood on the

beam with one hand holding to a knot in the

wall. He realized now that even grown he

would have to climb to the upper room the

same way he had as a child—working his

way up a wall, digging his toes into the

chinks between the logs, while pulling up on

the beam of the next tier above.

The second level was where Frankie had

fallen as a child, breaking his arm and ruin-

ing his chances of working in the shade. It

didn’t look that tall at all. He was sure he

could just jump down from here if he want-

ed. This was also the log Jeanie sat on when

she would sneak a cigarette, since she was too

young to smoke. She would climb up and sit

bent-kneed on the second, with her feet on

the first, leaning against the wall, wrongly

believing her brother the barn boss was

oblivious. Frankie would just as sneakily fol-

low her and stand looking up at her as she

smoked. She wore cutoff jeans—the kids

called them Daisy Dukes—and he tried not

to stare at her legs. They hardly ever said any-

thing, instead sharing a quiet moment in the

shade, each wondering what the other was

wondering. On the last day of harvest of the

last season he would ever see her or her

brother, she tossed her butt down into the

dirt as always, but when she hopped down

Jeanie had walked right up to Frankie and

kissed him hard, and had then ducked out

through the door. He could still feel the

warmth of her lips, the mash of his lips

against his teeth, and the complete vacuum

that immediately followed. He looked up

into the shadows and dust for a moment

longer than the kiss, and then scrambled up

to the third beam and kept climbing.

Otha had fallen from about the fifth level

when Frankie was 16, the suspected cause the

drinking of “apple cider” that Otha kept in a

big barrel hidden in the loft of the regular

barn. He broke both wrists, just before har-

vest, so he was completely useless when they

needed him the most. (“Come here and help

me, Frankie! I can’t even wipe my own damn

ass!” bellowed the double-casted Otha.)

Frankie climbed up onto the seventh level

of cross beams. Now he was nervous, for it

seemed a long way down. He rested here for

a while at the halfway point, looking up and

looking down. He was being flooded with

memories and emotions, all of it making him

shaky. He had never climbed this high any-

where, much less in the barns—he was

always too scared. Heck, he didn’t even like

the second floor balcony at North Hills Mall.

He took a big deep breath and started to

climb up to the next logs.

The tenth row of beams held a good

memory for him. It was from here that his

older brother pissed down on top of the

head of one of the trailer park boys, a trou-

blemaking bully called “Rooftop” because of

the stiff shingle of hair that stuck straight

out from his forehead. He had cornered a

young Frankie in the barn and was teasing

and pushing him around, unaware the

brother was hanging out up high. “Francis,

Francis,” he had sing-songed until he felt the

first splash and unwittingly looked straight

up into the yellow stream. Rooftop ran from

the barn cursing and crying. He never came

back. The good memory faded though,

since Frankie’s brother died some years later

in Iraq. (“Goddam politicians! ” wailed Uncle

Otha.) Frankie missed his brother some-

thing fierce.

The memory of Rooftop brought a flood

of others. If Frankie had ever had any

“friends,” it was a handful of the dozens of

field workers who had come and gone over

the years. Like DJ, the big black kid who

didn’t talk like any of the others—black or

white—but instead sounded like the books

Frankie liked to read. DJ would tell Frankie

he could be whatever he wanted when he

grew up. DJ planned on going to college and

being a lawyer. Or Michael and Billy, the two

cut-ups from the trailer park who would pull

pranks like putting garter snakes in the bacca

trailer to scare the girls at the barn, or would

offer Frankie a dollar to eat a fat, juicy tobac-

co worm. Or Miguel, the migrant worker

who had claimed to not speak or understand

any English until the day Frankie’s pa came

by with an old TV in the back of the truck.

He was giving the migrants the set to put in

the ancient tenant farmer’s shack where they

all lived. Miguel had taken one look at the

TV and blurted out, “Is it color?” This had

caused Frankie to fall down laughing, which

made the other workers laugh too. After that,

he and Miguel always primed side-by-side

rows, and Miguel would tell him stories of

life in Mexico.

There had been a few others like the

Wilson boys and the Baker brothers, maybe

not friends but at least friendly. However,

none of the former workers had ever stopped

by the farm over the years, and after the

switch to automation, there were no more

crews. After graduation from high school,

Frankie knew not much more than the isola-

tion of the farm, except for sporadic trips to

the First Baptist Church with his ma and the

Wendell tobacco warehouse with his uncle.

Frankie resumed moving slowly up the

wall. He didn’t pause anymore for fear he

would lose his will to rise any further. He

pulled and reached and climbed, and finally

kicked up onto the last timber. This was the

14th tier, but technically the first to be filled

with tobacco. Even though it was a nice day,

the top of the barn was sermon hot and

stuffy. Being above the trees meant no shade.

The sun would bear down on the metal roof,

super-heating the upper barn in the summer.

It supplemented Otha’s chimneys, but was

almost unbearable to the hangers laboring in

it. Here, from the side, the barn monkey

could get some fresh air by opening a small

wooden vent built into the wall—you lifted

a swinging hook from a bent nail and pushed

the door outward. Except the door had

swelled eons ago and was always stuck, so

you had to beat it open using your fist like a

hammer. Holding on tightly with one arm,

he banged open the vent.

He blinked in the sudden blinding flood

of sunlight. Through the opening, Frankie

could see out over the trees, just as Uncle

Otha had planned. He could see part of the

FALL 2014

old farmhouse where six generations of his

father’s family had lived. The view had

changed over the years, with the fire tower

now long gone and Raleigh full of tall, gener-

ally square-cornered buildings. Most of the

neighboring tobacco fields and log barns were

also gone, they and the forests buried under

cookie-cutter subdivisions. Yet, even with

farms turning into neighborhoods, and cross-

roads country stores lost to bigger IGAs or

even bigger Kroger shopping centers, it still

was a vast vista of trees and open space. The

bypass would change that, for good or ill.

For Frankie, though he had never been

here, the top of the seven room barn was the

place that had affected his life the most.

Frankie’s father fell from right here, opening

this stupid little door, losing his balance

while banging on it with his fist. He cracked

his skull on one of those stupid little gas

burners at the bottom. He last saw his father

in the Intensive Care Unit at Wake

Memorial, his head completely wrapped in

gauze, a stupid little tube leading from one

corner of his mouth, a trickle of blood drib-

bling from the other. (“Goddam doctors,”

sobbed Uncle Otha.) Nothing had ever been

the same again.

Frankie had never imagined being this

far off the ground. The floor, even without

the old jets, looked deadly simply because it

was so far down. Sliding his hands out onto

the log and pushing off the barn wall with

his feet, he edged out onto the beam that

once held hundreds of pounds of ripe, fat

tobacco, letting it settle into his armpits as

his torso hung half off half on and his legs

dangled below.

Frankie hung there using his muscles and

body weight to achieve a state of suspended

animation. It took little effort to remain in

balance. It felt like floating. He turned his

head and looked out of the little window

over the trees and let his memories float as

well: he thought of his ma and his pa and his

Uncle Otha; the loss of one brother and not

one but two farms; the smell of cured tobac-

co and unwashed workers; the long, hot

summers and long tanned legs; loud music

and loud auctioneers. He could hear the

singing of the field crews working their way

down the long rows, the steady rumble of the

tractor and trailer slowly keeping pace beside

them. He felt for a moment the peace that he

always felt during the morning and after-

noon breaks, sitting in the shade, listening to

birds chirp and twitter over the silenced trac-

tor, drinking deeply from an ice-cold Pepsi.

(“Off your ass and on your feet; out of the shade

and into the heat!” roared Uncle Otha.) He

could feel the scratch of burlap, the sticky of

tobacco resin, the pain in his bent lowered

back. He could taste the sting of sprayed

chemicals, of sweat pouring down his face, of

cold chicken soup eaten directly from the

can at the store during lunch when all the

farmers would congregate for 30 minutes

repeating the same tired phrases about the

heat, the humidity, the crop, and the prices.

He could sense the buzz of nicotine seeping

into his pores from the black gum staining

his forearms after a long day of priming. He

thought of highways and houses, families

and funerals, the things he would never have

and the things he would never have again.

Loss, longing, helplessness, aimlessness,

despair, and bittersweet nostalgia washed

over Frankie, just like the acrid papery smell

of decades of cured tobacco. He now had no

past and he could see no future.

Frankie thought of all of these things as

he swayed on the log and floated in the warm

still air. He suddenly and sharply realized,

maybe with a clarity of reason he had never

experienced, that he did indeed carry an

awful heavy burden with him, a burden that

prevented him from moving forward, from

being happy. And dammit! he was tired of

feeling that way. He looked down at the

shadowy dirt floor. He looked at the rough

log walls. He looked out the window at

bright sunshine and what would be no more.

He even looked up at the underside of the tin

roof, never shiny underneath but not on top

anymore either, noting the small pinholes

and spreading stains of rust. Frankie looked

at everything and nothing, felt everything

and nothing, tasted and heard and smelled

everything and nothing. He was being

crushed by his feelings, His Feelings, HIS

FEELINGS. Something drastic had to

change, and then Frankie decided that the

best way for him to get on with life was to

simply let it all go. And so he did.

Frankie let go. n

P. Richard Wilkinson closed his law practice

in 1998 to take a two year travel sabbatical. He

has since roamed the American West fighting

wildfire, rafting Class V rivers, climbing

10,000'+ mountains, and skiing big lines. He

will begin his return home to NC in 2015, pro-

jecting the journey will take 12 to 18 months

(depending on Alaska).

THE NORTH CAROLINA STATE BAR JOURNAL

Poetic Justice

The following poems are excerpts from the book

Poetic Justice, a collection of vignettes from life in

the practice of law rendered as humorous poems,

written by Charlotte attorney James DuPuy and

award-winning writer and editor ML Philpott.

A portion of the proceeds from the sale of the book

go to benefit WomensLaw.org. For more infor-

mation, see poeticjusticethebook.com.

The Call Not Taken

With a wink in Robert Frost’s direction

Two lines diverged on a Mylar plat,

And to one call I could not commit,

And being new here, sweating I sat,

And wondered just how it could be that

A single line could seemingly split.

One line was an easement of some sort,

But which was which? I was doomed to fail.

The clock was ticking, time had grown short,

And as my guts started to contort,

I sat alone and chewed my thumbnail.

Being young and scared, I dared not ask

My cruel senior partner for his take,

For fear of catching merciless flack,

Or being the victim of a wisecrack,

When he realized I was a fake.

So I chose the one that I thought right,

With anxiety and doubts acute.

Two lines diverged on a plat and I,

I called the one less traveled by,

And that led to my malpractice suit.

Ode to the Rainmaker

With thanks for the inspiration to Elizabeth

Barrett Browning

How do I love thee? Let me count the ways.

You reek of charm, the genetically blessed,

And while I spend my hours in this office,

You’re on some golf course or other most

days.

Your intellect is at best rather base,

Your work product is far below the rest,

Your attitude is I-couldn’t-care-less,

When I clean up your mess, you get the

praise.

Family connections and a silver spoon,

Like a nephew in the mob you’re plugged in.

What’s to love, then? It’s simple. Selfish, too:

I like having a job, money to spend.

And as little true law work as you do,

You’ve the golden touch at bringing it in. n

FALL 2014

recently had an opportunity to

talk with Robert (Bert) C.

Kemp III, a board certified spe-

cialist in state criminal law prac-

ticing in Pitt County. Bert

attended the University of

North Carolina at Chapel Hill, earning an

undergraduate degree in economics, and

subsequently received his law degree from

Wake Forest University.

Following graduation he spent

several years practicing both gen-

eral litigation and criminal

defense before accepting a posi-

tion as an assistant public

defender in Pitt County. He was

appointed chief public defender

in June 2007 and currently

supervises 13 attorneys in that

office. Bert is also a judge advocate, hold-

ing the rank of lieutenant colonel in the

NC National Guard. Bert became a board

certified specialist in 2005, and was

appointed to the Criminal Law Specialty

Committee in 2013. His comments about

the specialization program and its impact

on his career follow.

Q: Why did you pursue certification?

I had been in private practice as a crim-

inal defense attorney when I accepted the

position of assistant public defender in Pitt

County. At the time, several of my clients

viewed that change as a demotion, akin to

a resident doctor or some kind of training

position. They expressed concern for me

and were hopeful that I would get myself

out of trouble and back to being a "real"

lawyer. I had to explain that I was a "real"

lawyer and that I took this position very

seriously. I wanted to prove to clients, col-

leagues, and mainly to myself that I could

accomplish this goal. I also knew it would

be a good opportunity to refresh my

knowledge about criminal law as well.

Q: How did you prepare for the examina-

tion?

I read Chapters 14, 15, 15A, and 20 of

the North Carolina General Statutes. I also

reviewed materials from several continuing

legal education courses. The School of

Government has a wealth of outstanding

information available online, and I certain-

ly took advantage of those resources. As an

assistant public defender I worked mainly

on high-level felonies, including robberies

and sex offense cases. I viewed having to

study as a great opportunity to

re-learn some items I had for-

gotten. I especially reviewed

recent case law and spent time

examining subjects I did not

routinely encounter in my daily

work.

Q: Has certification been help-

ful to your practice?

The certification has shown

others that this is a target that can be

achieved. One of my personal goals moving

forward is to promote certification within

the public service arena. I believe that it is

critical to our judicial system to retain

qualified lawyers in both public defender

and prosecutorial positions, as well as those

working for Legal Aid. Many of the lawyers

that I work with are [de facto] specialists in

their area and deserve, not only a monetary

raise, but a high level of recognition for

their dedication. Board certification is one

way to provide this recognition, and hope-

fully to encourage and inspire them to con-

tinue their public service.

I am so pleased to learn that the Board

of Legal Specialization recently launched a

new program with NC LEAF [Lawyers

Education Assistance Foundation,

ncleaf.org] to provide financial scholarships

to cover the certification application fees

for state prosecutors, public defenders, and

non-profit public service attorneys. I think

this type of program and the John R.

Justice program [ncleaf.org/content/john-

r-justice-jrj-program-summary] are critical

components to retaining quality public

defenders and prosecutors. For the past few

years, pay increases have been few and far

between for these lawyers. Therefore, every

little bit helps to recognize their dedication.

Q: How does certification benefit your

clients?

Few ways exist to distinguish yourself as

a dedicated and competent lawyer.

Certification is one way that I can demon-

strate to my clients what this practice

means to me, and give them the comfort

that they have been assigned a "real"

lawyer. As the public defender for Pitt

County, I have built an office of good and

knowledgeable employees who have a call-

ing for this work. I want all of our clients

to recognize the quality and commitment

of their attorneys.

Q: Are there any hot topics in your spe-

cialty area right now?

One of the biggest issues in criminal law

right now involves the collateral conse-

quences associated with a conviction, such

as in domestic violence cases, DWIs, and

sex offenses. Our work as public defenders

encompasses all of these areas. DWI law

has become so complicated—with the con-

sequences for clients being so serious—that

it really takes a specialist’s depth of knowl-

edge and experience to be able to under-

stand and properly manage all of the issues

involved. Other hot topics include immi-

gration ramifications and the possible

upcoming change in juvenile delinquency

laws. If the juvenile age is indeed raised in

certain cases, more proceedings will be

handled in juvenile court, which will sig-

nificantly increase the demand for special-

ists in juvenile delinquency law.

Q: Is certification important in your prac-

tice area?

Certification is extremely important in

criminal law. The more information made

available to the public, the better. In gener-

al, clients today have greater access to infor-

mation, thereby enabling them to make

informed choices. However, I, as a public

defender, am appointed to represent my

Profiles in Specialization—Robert C. Kemp III

B Y D ENISE M ULLEN, ASSISTANT D IRECTOR OF L EGAL S PECIALIZATION

LEGAL SPECIALIZATION

Kemp

THE NORTH CAROLINA STATE BAR JOURNAL

Resolution of Appreciation for Jeri L. Whitfield

WHEREAS, the North Carolina State Bar Board of Legal Specialization desires to recognize the services of JERI L.

WHITFIELD and her contribution to the specialization program of the North Carolina State Bar; and

WHEREAS, Jeri’s exemplary statewide reputation as a workers’ compensation defense lawyer led to her appointment by

the board to the initial Workers’ Compensation Law Specialty Committee where she served for six years; the committee was

charged with the development of the standards for the specialty and the drafting of the first workers’ compensation law specialty

examination; and, although specialty certification in this practice area may appear to be more advantageous to plaintiffs’ lawyers

than to defense lawyers, Jeri became a champion for board certification, recognizing the significance of a workers’ compensation

law specialty to the public and to the professional development of all workers’ compensation lawyers; and

WHEREAS, Jeri became one of the first board certified specialists in workers’ compensation law in 1997; and

WHEREAS, as a member of the Board of Legal Specialization from 2006 to 2014, Jeri gave unselfishly of her time and

talent—over the course of nine years, missing only one board meeting; Jeri’s personal experience with certification helped the

board to make informed policy decisions about the certification and recertification of lawyers, the allocation of resources, the

employment of the board’s first psychometrician, and the development of new areas of specialty, including elder law; and

WHEREAS, as a member of numerous board committees and review panels, Jeri heard complex appeals from denials of

certification and recertification, and, as a consequence of her experience with difficult appeals, she was appointed to chair a

committee that studied and then overhauled the board’s hearing and appeal rules, thereby increasing the clarity, transparency,

and fairness of the process; and

WHEREAS, as chair of the board from 2011 to 2014, Jeri led the development of new and unique specialties in practice

areas that are important to the consuming public; to wit: appellate practice—for which she enlisted the support of law partner,

former Chief Justice James Exum—juvenile delinquency law, and trademark law; and she oversaw the twenty-fifth anniversary

of the North Carolina State Bar’s specialization program; and

WHEREAS, Jeri’s consummate professionalism, thoughtful and diplomatic approach to difficult issues, championship

of the specialization staff, and unwavering support of board certification for lawyers as the hallmark of professionalism, will be

missed by the members of the board, by the specialization staff, and by the members of the bar;

NOW, THEREFORE, BE IT RESOLVED BY THE NORTH CAROLINA BOARD OF LEGAL

SPECIALIZATION:

That the members of the board hereby express their appreciation and gratitude to JERI L. WHITFIELD for her outstanding

devotion and service on the North Carolina State Bar Board of Legal Specialization.

client. Therefore, the client has no choice

in their attorney, which makes certification

even more important in developing a high

level of trust and comfort between the

attorney and client.

Q: How does certification benefit the pro-

fession?

Certification builds trust and credibility

with the clients, which in turn benefits the

profession. It also creates a collegiality

among peers, including adversaries, as it

promotes a focus on professional practice

rather than monetary gain. Anything we

can do as lawyers to further our knowledge

and hone our skills will also improve the

practice of criminal law for all involved.

Q: How do you see the future of special-

ization?

I think the program will continue to

expand as more attorneys will see it becom-

ing almost a necessity. Providing a legal

specialty certification program is one way

that the State Bar shows the public that it is

making an investment in the continuing

education and growth of attorneys. n

For more information on the State Bar’s

specialization program, visit us online at

nclawspecialists.gov. To donate to the NC

Leaf Scholarship Fund, please send a check to:

NC LEAF - Specialization Scholarship, 217

E. Edenton Street, Raleigh, NC 27601.

NO MORE THAN 24!

Please return every phone call, email or

other form of communication from a

client within 24 hours. The number one

complaint against lawyers each year at

the NC State Bar is, “my lawyer will not

return my phone calls or communica-

tions.” We can end these complaints—it

will just take a little effort.

—Mel Wright

Executive Director, The Chief Justice's

Commission on Professionalism

FALL 2014

When we help a client fix a problem or

reach a desired outcome, we often feel a

strong sense of personal and professional

achievement and satisfaction. Researchers

call that experience “compassion satisfac-

tion.” Compassion satisfaction is crucially

important because it sustains us through the

bad days—the days when we don’t achieve

the desired outcome or when a client has no

viable good options. For many of us, much

of our career is spent assisting people in ter-

ribly difficult situations, and our ability to

effect real change or outcomes is far more

limited than we ever imagined it would be.

With the ever increasing specialization of

the profession, today most lawyers deal with

a very high volume of the same kind of

client distress day in and day out. It is not

uncommon, for example, for a workers’

comp lawyer to have anywhere from 250-

400 open cases at one time. With a high

case load and nonstop exposure to the same

type of client distress, over the course of a

career the bad days can begin to outweigh

the good ones. When that happens, we may

develop a condition known as compassion

fatigue. If left unaddressed, compassion

fatigue can lead to secondary trauma and

burn out.

Compassion fatigue is defined as the

cumulative physical/emotional/psychologi-

cal effects of continual exposure to traumat-

ic or distressing stories/events when working

in a helping capacity where demands out-

weigh resources. The two largest factors that

contribute to developing compassion

fatigue are 1) high volume of workload and

2) exposure to client distress and trauma.

Unfortunately, all the best legal training in

the world cannot turn off our mirror neu-

rons, which exist in that highly-evolved part

of our brain that responds

neurologically/emotionally to other people’s

distress as an involuntary response (even

when we might not have any conscious

awareness of an emotional response). The

symptoms of compassion fatigue can often

mimic those of depression or anxiety, but

there are a few key differences (and depres-

sion and anxiety are often symptoms of

compassion fatigue).

Behavioral symptoms:

• absenteeism from work

• anger and irritability with coworkers,

clients, opposing counsel, judges, family,

and friends

• indecisiveness; an impaired ability to

make decisions

• avoidance of clients in general or cer-

tain clients

• lack of diligence in work performed

• no longer finding enjoyment in hobbies

and activities that used to be pleasurable

• avoidant behavior at home (e.g. watch-

ing too much TV, reading, online gaming,

and not interacting with family or friends).

Psychological symptoms:

• emotional exhaustion

• intrusive thoughts (like flashbacks to

evidence in an old case when one is at

home, or a sense of dread of something bad

happening to one’s family or children)

• heighted sense of anxiety and fear

• sleep disturbance at night and fatigue

during the day

• loss of appetite

• cynicism (loss of empathy; loss of faith

in humanity)

The Price We Pay as Professional Problem Solvers

B Y R OBYNN M ORAITES

LAWYER ASSISTANCE PROGRAM

ost of us decided to go to law school

because we had a passion for justice

and helping people. While we may

not think of the legal profession as a

traditional helping profession like we typically think of social work, the reality is that we

serve in a primary helping capacity. Clients are in distress, enough so that they have elected

to pay someone (a lawyer) to help them fix the problem or help them achieve the best (or

more often, the least bad) outcome.

• sense of isolation or alienation from

others (for example, either intentionally dis-

tancing from friends and family or simply

feeling isolated in a group—“When I get

home, I feel like I am from another planet

because of what I saw today at work.”)

• physical complaints (headaches, stom-

ach problems, TMJ, back problems, etc.)

• helplessness

• dread of seeing certain clients.

When one moves beyond compassion

fatigue into secondary trauma and burnout,

symptoms are more severe. In secondary

trauma, the lawyer or judge has developed a

post-traumatic stress disorder (PTSD)

response to the day-to-day activities needed

in his or her job and in life. The PTSD

response results not from some personal

trauma the lawyer once suffered, but from

the vicarious trauma he or she is exposed to

when helping clients.

Judges in particular are at risk for devel-

oping compassion fatigue, especially district

court judges. And lawyers in these practice

areas are considered particularly at risk for

developing compassion fatigue:

• criminal law

• family law

• personal injury and workers’ comp law

• medical malpractice law

• personal bankruptcy

• wills, trusts, and estates.

In good news, compassion fatigue can

often be treated largely through awareness

and lifestyle choices. The problem, of

course, is that many of us are entrenched in

how we operate on a day-to-day basis, and

some of these lifestyle suggestions seem

unattainable. The LAP has helped so many

lawyers bring their lives back into balance

who are suffering from compassion fatigue.

Listed below are some suggestions that at

first blush might seem minor, but have the

greatest impact.

• Rigorous exercise three to four times a

week. Our bodies and brains store a great

deal of pent-up energy from the stresses we

encounter in work and life. Regular exercise

does more than release endorphins,

although that is a great benefit. I am a big

advocate of hot yoga. As one client reports,

“It takes all the fight right out of you.”

Another client who was suffering from com-

passion fatigue reported, “If I hit two hot

yoga classes a week I seem to be fine. When

I skip a week I start to derail pretty quickly.”

Running, long distance cycling, swimming,

triathlons, vinyasa (power) yoga or hot yoga,

Zumba, or other aerobic classes are all viable

options. Anything that moves your heart

rate into a 65-85% of max range will

work—it needn’t be a high impact activity.

• Finding ways to laugh and have real

fun and connection. Our emotional balance

in life depends in part on the stimulus hit-

ting our mirror neurons. When you recall

times you felt really connected to someone

or a group of people, there was something

very positive happening in your brain. That

felt sense of connection is an important tool

for emotional resilience. Sometimes a belly

laugh that brings tears to our eyes is more

restorative than two years of talk therapy. So

find people who make you laugh and to

whom you feel a deep sense of connection

and spend time with them.

• Resume or develop hobbies. Usually as

work and time demands increase, the first

thing we abandon are hobbies and activities

that seemingly serve no useful purpose.

These activities are precisely the kinds of

things that restore emotional resilience.

Doing something you enjoy simply because

you enjoy it balances the chemistry in your

brain and goes a long way toward balancing

our perspective when faced with difficulties.

Find those things you abandoned—or those

things you’ve always wanted to do but have

never gotten around to doing—and begin

to incorporate them into your life.

• Begin to develop some form of a mind-

fulness or meditation practice. These prac-

tices help foster big-picture perspective and

separate us, just a little bit, from our emo-

tional reactions to situations. As we get

more skilled in learning to step back emo-

tionally and noticing our reactions, those

reactions have less power to dictate our

behavior. We learn to pause when agitated

or doubtful instead of reacting to the agita-

tion or doubt.

Compassion fatigue symptoms are nor-

mal displays of stress resulting from the

problem solving and caregiving work we

perform on a regular basis. While the symp-

toms can be at first subtle if not addressed,

they can eventually become disruptive to

both our work and home life. An awareness

of the symptoms and their negative effects

can lead to positive change, personal trans-

formation, and a new emotional resilience.

Reaching a point where we each realize we

have control over our own life choices takes

some time, dedication, and hard work.

There is no magic involved. There is only a

commitment to make our lives the best they

can be. n

Robynn Moraites is the director of the

North Carolina Lawyer Assistance Program.

The North Carolina Lawyer Assistance

Program is a confidential program of assistance

for all North Carolina lawyers, judges, and

law students, which helps address problems of

stress, depression, alcoholism, addiction, or

other problems that may lead to impairing a

lawyer’s ability to practice. If you would like

more information, go to nclap.org or call:

Cathy Killian (for Charlotte and areas west) at

704-910-2310, Towanda Garner (in the

Piedmont area) at 919-719-9290, or Robynn

Moraites (for Raleigh and down east) at 704-

892-5699.

THE NORTH CAROLINA STATE BAR JOURNAL

Professional Quality of Life

Compassion Satisfaction

Compassion Fatigue

Secondary Trauma

Burnout

By Beth Hudnall Stamm PhD, et. al.

FALL 2014

n May 2, 2014, the

North Carolina State

Bar Board of

Paralegal

Certification held an

event to honor

North Carolina certified paralegals (CPs)

and to express appreciation to CPs for their

contributions to the new North Carolina

State Bar headquarters. The event was held

at the new headquarters and consisted of a

free three-hour continuing paralegal educa-

tion (CPE) program followed by a catered

reception. Over 200 guests attended the

event.

Shelby Benton of Benton Family Law, a

NC State Bar councilor from the 8th

Judicial District and current member of the

Board of Paralegal Certification, presented

at the CPE program. Ms. Benton, a certified

family law specialist who practices in Wayne

County, provided an overview of social

media and how it can be used by paralegals

to help lawyers investigate cases, discover

electronic evidence, and better represent

their clients. Attorney Ketan P. Soni provid-

ed materials for the presentation.

Patricia F. Clapper, ACP, NCCP, made a

presentation on “Patti’s Wonderful

Websites for Paralegals.” Ms. Clapper is a

paralegal for Levine & Stewart in Chapel

Hill and currently serves on the Board of

Paralegal Certification. She is also the cur-

rent president of the North Carolina

Paralegal Association and an adjacent pro-

fessor for the paralegal certificate program

at Central Piedmont Carolina Community

College.

Alice Neece Mine presented the ethics

portion of the CPE program. Ms. Mine is

the assistant executive director of the North

Carolina State Bar. In this capacity she is

staff counsel to the Ethics Committee and

director of the Board of Paralegal

Certification.

After the CPE presentations, board

chair Gray Wilson welcomed the certified

paralegals and recognized NC State Bar

officers, former and present members of the

Board of Paralegal Certification, members

of the Paralegal Certification Committee,

CONTINUED ON PAGE 35

PARALEGAL CERTIFICATION

Celebrating Certified Paralegals

B Y J OY B ELK

NC State Bar Foundation Chair John McMillan and NC State Bar Board of Paralegal

Certification Chair G. Gray Wilson.

THE NORTH CAROLINA STATE BAR JOURNAL

Income

Unfortunately, we must report that the

income from IOLTA accounts continues to

decrease as many banks are recertifying

their comparability rates at lower levels. In

2013, income from IOLTA accounts

declined by 9% and was under $2 million

for the second year in a row, which had not

previously happened since 1994. However,

our total income, which received a boost

from two cy pres awards during 2013 total-

ing over $650,000, was $2.4 million.

Income from participant accounts through

the first quarter of 2014 decreased by

another 5%.

Grants

Current Grants. Beginning with 2010

grants, we have limited our grant making

to a core group of (mainly) legal aid

providers. Even with that restriction and

using over $2.5 million in reserve funds,

grants have dramatically decreased (by over

40%). For 2013, we were able to keep

grants steady at the 2012 level of $2.3 mil-

lion without using any additional funds

from reserve because of a large cy pres

award received in 2012. We were also able

to add funds to our reserve, bringing it to

just under $1 million. The reserve funds

and the additional income from cy pres

awards received in 2013 allowed the

trustees to keep grants steady at $2.3 mil-

lion again for 2014, although we are taking

$215,000 from reserve for that purpose.

Grant Software. For the 2015 grant

cycle we will implement new grant software

that is already in use in three large IOLTA

programs in other states. The new software

will allow applicants to apply online and

submit all necessary documents through

the system, and allow staff and trustees to

review applications through the system.

Further, all narrative and statistical report-

ing and tracking of grantee outcomes will

occur within the system, allowing staff to

generate reports on program impacts effi-

ciently. The initial $16,000 cost of pur-

chasing and implementing the software is

being supported by two grants totaling

$9,000 from the Chief Justice’s

Commission on Professionalism and the

NC Equal Access to Justice Commission.

State Funds

In addition to its own funds, NC

IOLTA administers the state funding for

legal aid on behalf of the NC State Bar.

Total state funding distributed for the 2013

calendar year was $3.5 million, decreased

from just under $6 million in 2008 due to

reductions to both the appropriated funds

and the filing fee allocations. The state

budget adjustments for 2014-15 eliminat-

ed the appropriation for legal aid work

(currently $671,250). Though the pro-

posed Senate budget had also eliminated

the Access to Civil Justice funding from

court fees (~$1.8 million), that funding

was continued in the final budget, with sig-

nificant additional reporting requirements

for Legal Aid of NC. The Equal Access to

Justice Commission and the NCBA con-

tinue to work to sustain and improve the

funding for legal aid.

IOLTA Leadership

The State Bar Council appointed Ed

Broadwell and Charles Burgin as chair and

vice-chair of the NC IOLTA Board of

Trustees for 2014-15. Broadwell is retired

chairman and CEO of Home Trust Bank

in Asheville, and has served on the board of

the American Bankers Association (2007-

09) and the NC Bankers Association

(1976-78 and 1980-82), including serving

in 1980-81 as chair. Burgin, a former NC

Bar Association president, is retired from

private practice in Marion. Both have

served as NC IOLTA trustees for a num-

ber of years, and their continuity and

knowledge of the NC IOLTA program

and its grantees will be particularly valuable

CONTINUED ON PAGE 36

IOLTA UPDATE

Income Outlook Remains Bleak for Near Future

Though in difficult times, NC IOLTA reaches its 30th year in 2014. NC State Bar officers and

IOLTA trustees recognized the milestone at the April board dinner. Edward C. Winslow III, John

B. McMillan, Janice M. Cole, Michael A. Colombo (chair), Freeman Edward Broadwell Jr., (vice-

chair), Hope H. Connell, Charles E. Burgin, E. Fitzgerald Parnell, and Linda M. McGee.

FALL 2014

Disbarments

Donald Lively of Raleigh surrendered his

law license and was disbarred by the State Bar

Council. Lively was administratively sus-

pended in 2010 for failing to attend manda-

tory continuing legal education. During the

suspension he practiced law, collected fees,

and misrepresented his professional status to

the court, other attorneys, his clients, and

third parties.

Susan E. Mako, formerly of Wilmington,

was disbarred by the DHC. The DHC con-

cluded that Mako misappropriated and gross-

ly mishandled entrusted funds, did not pay

taxes, and abandoned her law practice.

Richard Z. Polidi of Raleigh surrendered

his law license and was disbarred by the Wake

County Superior Court. Polidi received

approximately $16,000 in settlement for a

client. Although Polidi knew his client had

assigned the right to those funds to a third

party, he used the entrusted funds for his own

benefit and for the benefit of the client with-

out the third party’s authorization.

Suspensions & Stayed Suspensions

The DHC suspended William T.

Batchelor of Wilmington for three years. The

DHC found that Batchelor charged and col-

lected a clearly excessive amount for expenses

and mismanaged his trust account in a variety

of ways. After serving one year of the suspen-

sion, Batchelor may apply for a stay of the

balance upon compliance with numerous

conditions.

George Rexford (Rex) Gore of Shallotte is

a former elected district attorney. Gore agreed

to increase an assistant district attorney’s com-

pensation by approving false travel reim-

bursement claims the ADA submitted to the

Administrative Office of the Courts. He

approved 63 travel claims totaling over

$14,000 for mileage the ADA did not incur.

Gore pled guilty to the misdemeanor offense

of Willful Failure to Discharge Duties. The

DHC suspended Gore for four years. Gore

received credit toward the satisfaction of the

four-year suspension for the time since the

court suspended his law license in August

2013. After serving two years of the suspen-

sion, Gore may apply for a stay of the balance

upon compliance with numerous conditions.

In 2012, Roydera Hackworth of

Greensboro was suspended by the DHC.

Before she was suspended, Hackworth

engaged in the unauthorized practice of law

by representing her nephew in a personal

injury case in Alabama, where she was not

licensed. After she was suspended by the

DHC, Hackworth continued representing

her nephew. She also made misrepresenta-

tions to the Grievance Committee. The

DHC suspended Hackworth for five years.

The suspension runs concurrently with the

suspension imposed in 12 DHC 3.

Mary Susan Phillips of Wallace neglected

numerous clients and did not respond to

notices from the clerk of court to file estate

accountings. The DHC suspended her for

three years. After serving nine months of the

suspension, Phillips may apply for a stay of

the balance upon compliance with numerous

conditions.

Asheville attorney Julia Leigh Sitton pled

guilty to misdemeanor obstruction of justice.

Sitton was an employee of the Bev Perdue

campaign. Sitton agreed that a campaign

contributor could pay her an extra $2,000 per

month through a purported consulting con-

tract under which Sitton did not actually pro-

vide any consulting services to the contribu-

tor. This arrangement allowed the contribu-

tor to exceed the limit on allowable campaign

contributions under N.C. Gen. Stat. § 163-

278.13 and allowed the campaign to avoid

reporting the payments on campaign finance

reports required by N.C. Gen. Stat. § 163-

278.8 and § 163-278.11. The DHC sus-

pended Sitton’s law license for three years.

After serving one year of the suspension,

Sitton may apply for a stay of the balance

upon compliance with enumerated condi-

tions. Sitton received credit for the time she

voluntarily abstained from the practice of law

following her conviction.

Censures

Ronald E. Cooley of Hillsborough was

censured by the Grievance Committee.

Cooley failed to attend a deposition for his

client, did not communicate with his client

about discovery requests, did not comply

with discovery obligations, did not ensure

proper service on an opposing party, and

made false statements to his client.

The Rowan County District Court cen-

sured Tiffany Dawn Russell of Durham. The

court concluded that Russell engaged in

unprofessional behavior and willfully failed to

THE DISCIPLINARY DEPARTMENT

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Don’t Miss Important

State Bar Communications

Log on to ncbar.gov to make sure

we have your email address.

comply with Rule 12 of the General Rules of

Practice for the Superior and District Courts.

Russell gave notice of appeal.

Reprimands

Thomas D. Blue Jr. of Raleigh was repri-

manded by the Grievance Committee. Blue

was assigned by his law firm to supervise a

nonattorney assistant’s trust account record

keeping. Because Blue failed to ensure the

assistant was conducting proper reconcilia-

tions, the firm did not discover an error on a

client ledger that occurred in November

2010. As a result of the undiscovered error,

the firm over disbursed to the client 14

months later. The firm finally discovered the

original error and the overdisbursement in

August 2013. The Grievance Committee rec-

ognized several mitigating factors.

The Grievance Committee reprimanded

Kristen Comerford, formerly of Winston-

Salem. Comerford made false entries in docu-

ment review software and a timekeeping sys-

tem to exaggerate her billable hours.

Mark Jetton of Raleigh was reprimanded

by the Grievance Committee. Jetton’s direct

solicitation letters contained false and mis-

leading statements, promised results that

could not be guaranteed, and compared his

services to those of other lawyers.

The Grievance Committee reprimanded

Christopher Lane of Clemmons. Lane agreed

to serve as “Of Counsel” to a foreign law firm

and facilitated the firm’s unauthorized prac-

tice of law in North Carolina. Lane also made

false or misleading statements to a client of

the foreign firm.

The Grievance Committee reprimanded

Raleigh lawyer W. Andrew LeLiever.

LeLiever did not timely comply with bank-

ruptcy court orders, did not appear at court

hearings regarding his noncompliance, and

told the bankruptcy trustee that he would not

pay over funds in his possession that belonged

to the bankruptcy estate without a court

order. LeLiever also committed a number of

trust account violations, including failing to

reconcile his trust account quarterly, failing to

maintain client ledgers, commingling his

own funds with entrusted funds, and using

improper methods to disburse funds from his

trust account.

Jennifer Moore of Asheville was repri-

manded by the Grievance Committee.

Moore made misleading statements to the

State Bar, neglected her client’s interests, and

did not take appropriate steps to protect the

client’s interests when she withdrew from

representation.

The Grievance Committee reprimanded

Claire J. Samuels of Charlotte, who argued

the merits of her client’s case in emails to the

judge and her clerk.

Antoinette Van-Riel of Winston-Salem

was reprimanded by the Grievance

Committee. Van-Riel charged clearly exces-

sive fees, did not communicate with her

client, did not participate in the State Bar’s

mandatory fee dispute resolution program,

and did not respond to the Grievance

Committee.

Karen Wright of Shelby was reprimanded

by the Grievance Committee. Wright neg-

lected her duty to settle the estates of her

clients’ parents, did not keep the beneficiaries

reasonably informed about the statuses of the

estates, and did not promptly comply with

the beneficiaries’ reasonable requests for

information.

Reinstatements

Douglas T. Simons of Durham surren-

dered his law license and was disbarred by the

State Bar Council on April 15, 2005. Simons

admitted that he misappropriated at least

$300,000. On March 27, 2014, a panel of

the DHC recommended that his petition for

reinstatement be denied. Simons’ appeal to

the State Bar Council is pending.

In November 2007, Ralph T. Bryant of

Newport surrendered his law license and

was disbarred by the DHC for misappropri-

ating entrusted funds totaling $64,847.

Bryant petitioned for reinstatement. On

June 12, 2014, a panel of the DHC

announced its finding that Bryant had

reformed, but that his reinstatement would

be detrimental to the integrity and standing

of the bar, the administration of justice, or

to the public’s interest and recommended

that his petition for reinstatement be denied.

An order has not yet been entered.

THE NORTH CAROLINA STATE BAR JOURNAL

Paralegals (cont.)

and members of the Item Writers

Committee in attendance. He also recog-

nized John McMillan, chair of the North

Carolina State Bar Foundation, and other

members of the foundation in attendance.

Prior to the construction of the new State

Bar headquarters, the foundation was cre-

ated to receive donations of funds for the

enhancement of the new building. That

initiative was kickstarted in 2009 when the

Board of Paralegal Certification, upon the

recommendation of the paralegal members

of the board, gave half a million dollars for

the construction of the building.

Mr. McMillan presented Mr. Wilson

and the Paralegal Certification Program

with a beautiful memory book that chron-

icles the construction of the new headquar-

ters. Champagne glasses were passed and a

toast was made in appreciation of certified

paralegals for their dedication to and finan-

cial support of the State Bar.

After the toast, everyone was treated to

a catered reception. The decorations and

food were provided by Savory Fare of

Durham. Guests were given tours of the

new building and art collection. The tour

ended with a visit to the first floor

“Members Suite” where a plaque com-

memorating the contribution to the build-

ing hangs. The reception provided the

opportunity for seasoned and newly certi-

fied paralegals to network and visit with

old and new friends. It was a memorable

and successful event. n

Joy Belk is the assistant director of the

Paralegal Certification Program.

FALL 2014

n the next page you will

find a Trust Account

Reconciliation Sheet,

which was designed to

assist lawyers with their

quarterly three-way reconciliations. Rule

1.15-3(d)(1) requires that lawyers complete

a three-way reconciliation at least quarter-

ly; however, the State Bar recommends that

lawyers perform this task on a monthly

basis. We have designed these instructions

to make it as simple and clear as possible to

complete your reconciliation. The numbers

and sections in these instructions corre-

spond to the numbers and sections on the

reconciliation sheet.

Instructions

General Information

You will note that you must complete a

separate form for each trust account. Many

lawyers encounter problems because they

try to combine all entrusted funds into one

reconciliation regardless of whether they

are held in separate accounts. You must also

attach the listed documents in order for

this to be a proper three-way reconciliation.

Reconciliation of Lawyer’s Trust

Account Records

1. Enter the total of positive client

ledger balances as of the cut-off date on the

bank statement. This includes any admin-

istrative funds ledger or firm funds ledger

that you maintain to service the account.

Do not include balances that are negative.

If a client ledger shows a negative balance,

check the box. On another page, explain

the reason for the negative balance and

show your corrective action.

2. List the balance shown on your gen-

eral ledger/checkbook register as of the cut-

off date on the bank statement. Using the

same cut-off date on all documents is

imperative to avoid mismatched numbers.

Bank Statement Reconciliation

3. List the ending balance as shown on

the bank statement. On the next line list

the deposits that have yet to appear on the

bank statement (probably because they

were made at the end of the month). You

should provide a list of these outstanding

deposits and note the number of these

deposits in the provided line. Do the same

for outstanding/uncleared checks. Take this

time to examine the list of outstanding

checks and to investigate why those checks

have not cleared.

4. Add the outstanding deposits to the

ending balance and subtract the outstand-

ing checks to find your Subtotal.

5. This section is provided for lawyers to

explain any necessary adjustments to their

reconciliation. Adjustments might be

required if, for example, you identify bank

errors in your review of the bank statement.

Adjustments that are made to balances

must be explained with documentation.

6. Your Adjusted Trust Account Bank

Balance is your Subtotal plus or minus any

necessary adjustments listed in Section 5.

7. The balances listed in Sections 1, 2,

and 6 should all agree. If they are different,

attach an explanation and show how this

imbalance has been corrected. The person

who completed the reconciliation should

sign the form, as well as the lawyer who

reviewed the reconciliation and supporting

documents. Save this reconciliation for six

years as required in Rule 1.15-3.

If you have any questions about this

form (or would like a PDF copy) or any

other trust accounting issue, please contact

Peter Bolac at (919) 450-7860 or

Pbolac@ncbar.gov. Follow Peter on Twitter

@TrustAccountNC for alerts on trust

account scams.

Random Audits

Districts randomly selected for audit in

the 3rd quarter are District 15A (Alamance

County) and District 23 (Alleghany, Ashe,

Wilkes, and Yadkin Counties). n

Peter Bolac is the State Bar’s district bar

liaison and trust account compliance counsel.

TRUST ACCOUNTING

Top Tips on Trust Accounting:

Trust Account Reconciliation Sheet & Instructions

B Y P ETER B OLAC

IOLTA Update (cont.)

in these roles.

The council also appointed three

trustees. John McMillan was reappointed

to a second three-year term, and Betty

Quick and Sid Eagles were appointed as

new trustees replacing outgoing trustees

Linda M. McGee and Hope H. Connell.

• John B. McMillan is in private prac-

tice in Raleigh. He currently serves on the

Equal Access to Justice Commission.

During his service as NC State Bar presi-

dent in 2008-2009, he made it a priority to

increase IOLTA income by implementing

comparability, and he had earlier supported

moving NC IOLTA to a mandatory pro-

gram as a NCSB officer and councilor. His

knowledge of the State Bar, the IOLTA

program, and the legal aid community is

extremely valuable to our program.

• Elizabeth L. Quick is in private prac-

tice in Winston-Salem. Through her work

with a number of charitable organizations

and foundations, she has strong knowledge

of and interest in philanthropy. She is a

past-president of the North Carolina Bar

Association, 1997-98.

• Sidney S. Eagles Jr. is in private prac-

tice in Raleigh. From 1983 to 2004 he

served first as a judge and later as chief

judge of the North Carolina Court of

Appeals. He has also served as counsel to

the speaker of the house and as a special

deputy attorney general. He will bring

valuable judicial perspective to the board. n

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

At its meetings on April 25, 2014, and

July 25, 2014, the council of the North

Carolina State Bar voted to adopt the follow-

ing rule amendments for transmission to the

North Carolina Supreme Court for approval

(for the complete text see the Spring 2014

and Summer 2014 editions of the Journal or

visit the State Bar website):

Proposed Amendments to the

Procedures for Reinstatement from

Inactive Status and Administrative

Suspension

27 N.C.A.C. 1D, Section .0900,

Procedures for Administrative Committee

The proposed amendments eliminate the

three different CLE requirements for rein-

statement from inactive status and adminis-

trative suspension in favor of one standard

that applies to all petitioners for reinstate-

ment without regard to when the petitioner

was transferred to inactive or suspended sta-

tus; make March 10, 2011, the effective date

for the requirement of passage of the bar

exam if a petitioner was administratively sus-

pended for seven years or more; and permit a

member to take up to 6.0 CLE credits per

year online to satisfy the requirements for

reinstatement from inactive status and

administrative suspension.

Proposed Amendment to the Rules

Governing the Administration of the

CLE Program

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

Governing the Administration of the

Continuing Legal Education Program

The proposed amendment requires a

lawyer to be a nonresident for at least six con-

secutive months in a given year to qualify for

the nonresident exemption from mandatory

CLE.

Proposed Amendments to the

Standards for Certification as a

Specialist

27 N.C.A.C. 1D, Section .2500,

Certiﬁcation Standards for the Criminal Law

Specialty, and 27 N.C.A.C. 1D, Section

.2600, Certiﬁcation Standards for the

Immigration Law Specialty

The proposed amendments to the stan-

dards for the criminal law specialty reduce

the number of opposing counsel and judges

that must be listed as peer references on an

application for certiﬁcation in criminal law.

The proposed amendments to the stan-

dards for the immigration law specialty clar-

ify that CLE courses on topics related to

immigration law may be used to satisfy the

CLE requirements for certiﬁcation and

recertiﬁcation, and require four peer refer-

ences to be from lawyers or judges who have

substantial experience in immigration law.

Proposed Amendments to the Rules of

Professional Conduct

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

Conduct

In 2012 and 2013 the American Bar

Association (ABA) amended the ABA Model

Rules of Professional Conduct to address

issues relative to outsourcing, lawyer mobili-

ty, and advances in technology. Following

study by a special committee of the State Bar

Council, similar proposed amendments to

13 of the North Carolina Rules of

Professional Conduct (the NC Rules) were

approved for publication by the council on

January 24, 2014. An executive summary

and the proposed rule amendments can be

viewed in the Spring 2014 edition of the

Journal and on the State Bar website

(ncbar.gov/PDFs/Ethics_20-20.pdf).

Previously, at a meeting on October 25,

2013, the council voted to adopt amend-

ments to Rule 1.17 and Rule 7.3 of the NC

Rules, unrelated to the ABA amendments,

for transmission to the North Carolina

Supreme Court for approval (see the Fall

2013 edition of the Journal or visit the State

Bar website). However, at its meeting on

January 24, 2014, the council decided that

all pending proposed amendments to the

NC Rules should be submitted to the

Supreme Court at one time. Therefore, pro-

posed amendments to the following North

Carolina Rules of Professional Conduct have

been approved for transmission to the

Supreme Court (proposed amendments to

the title of a rule are noted):

Rule 1.0, Terminology

Rule 1.1, Competence

Rule 1.4, Communication

Rule 1.6, Conﬁdentiality of Information

Rule 1.17, Sale of a Law Practice

Rule 1.18, Duties to Prospective Client

Rule 4.4, Respect for Rights of Third Persons

Rule 5.3, Responsibilities Regarding

Nonlawyer Assistants Assistance

Rule 5.5, Unauthorized Practice of Law;

Multijurisdictional Practice of Law

Rule 7.1, Communications Concerning a

Lawyer’s Services

Rule 7.2, Advertising

Rule 7.3, Direct Contact with Potential

Solicitation of Clients

Rule 8.3, Disciplinary Authority; Choice of

Law

Proposed Amendments to the Rules of

the Board of Law Examiners

Rules Governing Admission to the

Practice of Law in the State of North

Carolina, Section .0100, Organization

Proposed amendments to Rules

Governing Admission to the Practice of Law

change the street and mailing address listed

for the ofﬁces of the Board of Law Examiners

to reﬂect the board’s recent move to a new

location.

Amendments Pending Approval of the Supreme Court

RULE AMENDMENTS

The Process

Proposed amendments to the Rules

of the North Carolina State Bar are pub-

lished for comment in the Journal. They

are considered for adoption by the coun-

cil at the succeeding quarterly meeting.

If adopted, they are submitted to the

North Carolina Supreme Court for

approval. Amendments become effective

upon approval by the Court. Unless

otherwise noted, proposed additions to

rules are printed in bold and under-

lined; deletions are interlined.

THE NORTH CAROLINA STATE BAR JOURNAL

At its meeting on July 25, 2014, the

council voted to publish the following pro-

posed rule amendments for comment from

the members of the bar:

Proposed Amendments to the

Discipline and Disability Rules

27 N.C.A.C. 1B, Section .0100,

Discipline and Disability of Attorneys

To better identify the program’s purpose,

the proposed amendments change the

name of the Trust Accounting Supervisory

Program to the Trust Account Compliance

Program. There are no changes to the sub-

stance of the rule other than the name

change.

.0112 Investigations: Initial

Determination; Notice and Response;

Committee Referrals

(a) Investigation Authority

...

(k) Referral to Trust Accounting

Supervisory Compliance Program

(1) If, at any time before a ﬁnding of

probable cause, the Grievance

Committee determines that the alleged

misconduct is primarily attributable to

the respondent’s failure to employ sound

trust accounting techniques, the com-

mittee may offer the respondent an

opportunity to voluntarily participate in

the State Bar’s tTrust aAccount supervi-

sory Compliance pProgram for up to

two years before the committee consid-

ers discipline.

If the respondent accepts the commit-

tee’s offer to participate in the superviso-

ry compliance program, the respondent

must fully cooperate with the Trust

Account Compliance Counsel….

(2) Completion of Trust Account

Supervisory Compliance Program

...

(3) The committee will not refer to the

program any case involving possible mis-

appropriation of entrusted funds, crimi-

nal conduct, dishonesty, fraud, misrepre-

sentation, or deceit, or any other case the

committee deems inappropriate for

referral...Referral to the Trust

Accounting Supervisory Compliance

Program is not a defense to allegations

that a lawyer misappropriated entrusted

funds, engaged in criminal conduct, or

engaged in conduct involving dishon-

esty, fraud, misrepresentation, or deceit,

and it does not immunize a lawyer from

the disciplinary consequences of such

conduct.

Proposed Amendments to the Rules

Governing the Administration of the

CLE Program

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

Governing the Administration of the

Continuing Legal Education Program

The proposed amendments change the

name of the mandatory CLE program for

new lawyers from “Professionalism for New

Admittees” to “Professionalism for New

Attorneys” (PNA Program), and permit the

Board of Continuing Education to approve

alternative timeframes for the PNA

Program, which will give CLE providers

more ﬂexibility to be creative in their pre-

sentations of the program.

.1518 Continuing Legal Education

Program

(a) Annual Requirement

...

New Members.

Except as provided in paragraph (d)(1),

each active member admitted to the North

Carolina State Bar after January 1, 2011,

must complete the North Carolina State

Bar Professionalism for New Admittees

Attorneys Program (PNA Program) in the

year the member is ﬁrst required to meet

the continuing legal education require-

ments as set forth in Rule .1526(b) and (c)

of this subchapter. CLE credit for the PNA

Program shall be applied to the annual

mandatory continuing legal education

requirements set forth in paragraph (a)

above.

(1) Content and Accreditation. The

State Bar PNA Program shall consist of

12 hours of training in subjects designat-

ed by the State

...

(2) Evaluation ...

(3) Format Timetable and Partial

Credit. The PNA Program shall be pre-

sented in two six-hour blocks (with

appropriate breaks) over two days. The

six-hour blocks do not have to be

attended on consecutive days or taken

from the same provider; however, no

partial credit shall be awarded for

attending less than an entire six-hour

block unless a special circumstances

exemption is granted by the board. The

board may approve an alternative

timetable for a PNA program upon

demonstration by the provider that the

alternative timetable will provide an

enhanced learning experience or for

other good cause; however, no partial

credit shall be awarded for attending

less than the entire 12-hour program

unless a special circumstances exemp-

tion is granted by the board.

(4) Online and Prerecorded Programs.

The PNA Program may be distributed over

the Internet by live web streaming (webcast-

ing) but no part of the program may be

taken online (via the Internet) on

demand…

(d) Exemptions from Professionalism

Requirement for New Members.

...

Proposed Amendments to

Certification Standards for the

Juvenile Delinquency Subspecialty

27 N.C.A.C. 1D, Section .2500,

Certiﬁcation Standards for the Criminal

Law Specialty

The proposed amendments reduce the

number of practice hours required to meet

the “substantial involvement” criterion for

the juvenile delinquency subspecialty and

allow for additional forms of “practice

equivalents.” This will reﬂect more realisti-

cally the practice experience of qualiﬁed

Proposed Amendments

Thank You to Our

Meeting Sponsor

Thank you to Lawyers Mutual for

sponsoring the July quarterly meeting.

juvenile delinquency practitioners, particu-

larly in rural communities.

.2508 Standards for Certiﬁcation as a

Specialist in Juvenile Delinquency Law

Each applicant for certiﬁcation as a spe-

cialist in juvenile delinquency law shall meet

the minimum standards set forth in Rule

.1720 of this subchapter. In addition, each

applicant shall meet the following standards

for certiﬁcation:

(a) Licensure and Practice ...

(b) Substantial Involvement - An appli-

cant shall afﬁrm to the board that the appli-

cant has experience through substantial

involvement in the practice of juvenile

delinquency law.

(1) Substantial involvement shall mean

during the ﬁve years immediately preced-

ing the application, the applicant devot-

ed an average of at least 500 400 hours a

year to the practice of juvenile delin-

quency law, but not less than 400 100

hours in any one year. “Practice” shall

mean substantive legal work, speciﬁcally

including representation of juveniles or

the state in juvenile delinquency court,

done primarily for the purpose of provid-

ing legal advice or representation, or a

practice equivalent.

(2) “Practice equivalent” shall mean:

(A) ...

(B) ...

nile delinquency legal clinic at an

accredited law school may be used to

meet the requirement set forth in Rule

.2508(b)(1).

(D) The practice of state criminal law

may be used to meet the requirement

set forth in Rule .2508(b)(1) but not

to exceed 100 hours for any year dur-

ing the ﬁve years. “Practice of state

criminal law” shall mean substantive

legal work representing adults or the

state in the state’s criminal district and

superior courts

(3) ...

(b) Continuing Legal Education

...

Proposed Amendments to the

Standards for Certification of

Paralegals

27 N.C.A.C. 1G, Section .0100, The

Plan for Certiﬁcation of Paralegals

The proposed amendments permit a

degree from a foreign educational institu-

tion to satisfy part of the educational

requirements for certiﬁcation if the foreign

degree is evaluated by a qualiﬁed credential

evaluation service and found to be equiva-

lent to an associate’s or bachelor’s degree

from an accredited US institution.

.0119 Standards for Certiﬁcation of

Paralegals

(a) To qualify for certiﬁcation as a parale-

gal, an applicant must pay any required fee,

and comply with the following standards:

(1) Education. The applicant must have

earned one of the following:

(A) an associate’s, bachelor’s, or master’s

degree from a qualiﬁed paralegal studies

program;

(B) a certiﬁcate from a qualiﬁed para-

legal studies program and an associate’s

or bachelor’s degree in any discipline

from any institution of post-secondary

education that is accredited by an

accrediting body recognized by the

United States Department of

Education (an accredited US institu-

tion) or an equivalent degree from a

foreign educational institution if the

degree is determined to be equivalent

to a degree from an accredited US

institution by a organization that is a

member of the National Association

of Credential Evaluation Services

(NACES) or the Association of

International Credentials Evaluators

(AICE) and a certiﬁcate from a quali-

ﬁed paralegal studies program; or

school accredited by the American Bar

Association.

(2) Examination.

... n

FALL 2014

In Memoriam

Douglas E. Canders

Fayetteville, NC

John Fleming Carter III

Wilmington, NC

Leonor Ortiz Childers

Durham, NC

David McKenzie Clark

Greensboro, NC

William C. Connor

Greensboro, NC

John Wyatt Dickson

Fayetteville, NC

Wiley Edwin Gavin

Asheboro, NC

William Campbell Gray Jr.

Wilkesboro, NC

Fred A. Gregory

Durham, NC

Charles Franklin Griffin

Charlotte, NC

Robert Curtis Gunst Sr.

Waxhaw, NC

Alton Myles Haynes Jr.

Pineville, NC

Margaret McLean Faw Fonvielle

Heyward

Wilmington, NC

Clark Mason Holt

Reidsville, NC

William Horace Lewis Jr.

Farmville, NC

William F. Marshall Jr.

Danbury, NC

Thomas Hill Matthews

Rocky Mount, NC

Christy Eve Reid

Charlotte, NC

Archie Leak Smith

Asheboro, NC

Dow M. Spaulding

Greensboro, NC

Daniel Thomas Tillman

Wadesboro, NC

David H. Wagner Jr.

Winston-Salem, NC

Harold L. Waters

Jacksonville, NC

Laura Kay Zhao

Charlotte, NC

THE NORTH CAROLINA STATE BAR JOURNAL

Council Actions

At its meeting on July 25, 2014, the State

Bar Council adopted the ethics opinions

summarized below:

2013 Formal Ethics Opinion 8

Responding to the Mental Impairment of

Firm Lawyer

Opinion analyzes the responsibilities of

the partners and supervisory lawyers in a

firm when another firm lawyer has a mental

impairment.

2013 Formal Ethics Opinion 12

Disclosure of Settlement Terms to Former

Lawyer Asserting a Claim for Fee Division

Opinion rules that, in a workers’ com-

pensation case, when a client terminates rep-

resentation, pursuant to an applicable excep-

tion to the duty of confidentiality, the subse-

quently hired lawyer may disclose the settle-

ment terms to the former lawyer to resolve a

pre-litigation claim for fee division.

2014 Formal Ethics Opinion 4

Serving Subpoenas on Health Care

Providers Covered by HIPAA

Opinion rules that a lawyer may send a

subpoena for medical records to an entity

covered by HIPAA without providing the

assurances necessary for the entity to comply

with the subpoena as set out in 45 C.F.R. §

164.512(e)(ii).

2014 Formal Ethics Opinion 5

Advising a Civil Litigation Client About

Social Media

Opinion rules a lawyer must advise a

client about information on social media if

information and postings on social media are

relevant and material to the client’s represen-

tation. The lawyer may advise a client to

remove information on social media if not

spoliation or otherwise illegal.

2014 Formal Ethics Opinion 6

Duty to Avoid Conflicts When Advising

Members of Nonprofit Organization

Opinion rules that a lawyer who provides

free brief consultations to members of a non-

profit organization must still screen for con-

flicts prior to conducting a consultation.

Ethics Committee Actions

At its meeting on July 24, 2014, the Ethics

Committee voted to send the following pro-

posed opinion to a subcommittee for contin-

ued study: Proposed 2013 FEO 14,

Representation of Parties to a Commercial Real

Estate Loan Closing. The committee also voted

to publish a proposed substitute opinion for

2013 FEO 2, Providing Defendant with

Discovery During Representation, an opinion

that was adopted by the State Bar Council on

January 24, 2014. Although the committee

declined to recommend withdrawal of the

existing opinion at this time, it is publishing

the proposed substitute opinion to garner

comment from members of the bar. On page

46 the Legal Ethics column considers the

competing concerns addressed in the adopted

opinion and the proposed substitute opinion

which are printed, in their entirety, after the

article. The Ethics Committee also voted to

publish a revised version of one proposed

opinion and three new proposed opinions.

The comments of readers on the proposed

opinions are welcomed.

Proposed 2014 Formal Ethics

Opinion 1

Protecting Confidential Client

Information When Mentoring

July 24, 2014

Proposed opinion examines issues relative to

confidentiality and the attorney-client privilege

when mentoring law students and lawyers.

Note: This opinion does not apply to law

students certified pursuant to the Rules

Governing the Practical Training of Law

Students (27 N.C.A.C 1C, Section .0200) or

to lawyers, employees, or law clerks (paid or

volunteer) being mentored or supervised by a

lawyer within the same firm. This opinion

addresses issues pertaining to informal men-

toring relationships between lawyers, or

between a lawyer and a law student, as well as

to established bar and/or law school mentor-

ing programs. Mentoring relationships

between a lawyer and a college or a high

school student are not addressed by this opin-

ion because such relationships require more

restrictive measures due to these students’ pre-

sumed inexperience and lack of understand-

ing of a lawyer’s professional responsibilities,

particularly the professional duty of confiden-

tiality.

Inquiry #1:

May a lawyer who is mentoring a law stu-

dent allow the student to observe confidential

client consultations between the lawyer and

the lawyer’s client?

Opinion #1:

Yes. The lawyer may allow the law student

to observe the consultation so long as the stu-

dent signs a confidentiality agreement and the

lawyer’s client gives his or her informed con-

sent, confirmed in writing.

Rule 1.6(a) of the Rules of Professional

Conduct provides that a lawyer shall not

reveal information acquired during the profes-

sional relationship with a client unless (1) the

client gives informed consent; (2) the disclo-

sure is impliedly authorized; or (3) one of the

exceptions set out in Rule 1.6(b) applies.

“Informed consent” is defined by Rule 1.0(f)

as denoting “the agreement by a person to a

proposed course of conduct after the lawyer

has communicated adequate information and

explanation appropriate to the circum-

stances.”

Relevant to mentoring scenarios is the

potential waiver of the attorney-client privi-

lege that can occur when communications

between the lawyer and the client take place in

the presence of a third party. The attorney-

client privilege prohibits a lawyer from testify-

ing as to confidential communications

between the lawyer and the client for the pur-

pose of legal representation. State v. McIntosh,

336 NC 517, 523, 444 S.E.2d 438, 441

(1994).

It is important to note the distinction

between the duty of confidentiality set out in

Rule 1.6 of the Rules of Professional Conduct

PROPOSED OPINIONS

Committee Revisits Sending a NC Subpoena to a

Records Custodian in Another Jurisdiction

and the attorney-client privilege. Although

the concepts of confidentiality and attorney-

client privilege are often used interchange-

ably, privilege applies to a much narrower cat-

egory of client information. A privilege exists

if (1) the relation of attorney and client exist-

ed at the time the communication was made,

(2) the communication was made in confi-

dence, (3) the communication relates to a

matter about which the attorney is being pro-

fessionally consulted, (4) the communication

was made in the course of giving or seeking

legal advice for a proper purpose although lit-

igation need not be contemplated, and (5)

the client has not waived the privilege.

McIntosh, 336 NC at 523-24, 444 S.E.2d at

442. Because the representation of a client

typically includes many activities that are not

confidential communications between a

client and a lawyer, there are many opportu-

nities for a mentee to observe a lawyer/men-

tor without implicating the attorney-client

privilege. (Examples include: real estate clos-

ings, court proceedings, witness interviews,

etc.)

The privilege is fundamental to the client-

lawyer relationship and the trust that under-

pins that relationship. To seek the client’s

informed consent, the lawyer must research

the law relating to the attorney-client privi-

lege and explain to the client what effect the

law student’s presence during the consulta-

tion may have on the attorney-client privilege

including a potential waiver of the privilege.

The lawyer must also explain any other

adverse effect on the client’s interests. ABA

Standing Comm. on Ethics and Prof’l Resp.,

Formal Op. 98-411(1988). The lawyer must

not ask for consent unless, in his professional

opinion, either the attorney-client privilege

will not be waived by the presence of the law

student or a potential waiver of the attorney-

client privilege will cause minimal, or no,

detriment to the client’s interests such that to

ask for consent is reasonable.

Pursuant to Rule 1.0(c), “confirmed in

writing” in this context “denotes informed

consent that is given in writing by the person

or a writing that a lawyer promptly transmits

to the person confirming an oral informed

consent.”

The issues addressed in this opinion as to

the potential waiver of the privilege are limit-

ed to mentoring scenarios where a law stu-

dent/new lawyer/mentee is observing a com-

munication between the lawyer and the

lawyer’s client but is not participating in the

representation as co-counsel or as an agent of

the representing lawyer.

Inquiry #2:

If a lawyer is mentored by a lawyer in a

different law firm, do the requirements in

Opinion #1 apply when the lawyer-mentee

observes a client consultation between the

lawyer-mentor and a client or when the

lawyer-mentor observes the lawyer-mentee

conducting such a consultation with his

client?

Opinion #2:

Yes. The lawyer conducting the consulta-

tion must evaluate the effect of the observing

lawyer’s presence on the attorney-client priv-

ilege. If the lawyer concludes that, in his pro-

fessional opinion, either the attorney-client

privilege will not be waived by the presence

of the other lawyer, or a potential waiver of

the attorney-client privilege will cause mini-

mal or no detriment to the client’s interests

such that to ask for consent is reasonable, the

lawyer may ask the client to consent to the

observation. The lawyer must obtain the

client’s informed consent confirmed in writ-

ing.

The lawyer conducting the consultation

must also obtain an agreement from the

observing lawyer to maintain the confiden-

tiality of the information as well as an agree-

ment that the observing lawyer will not

engage in adverse representations. Rule 1.7

and Rule 1.9.

Both lawyers should check for conflicts of

interest in advance of the consultation. Rule

1.7 and Rule 1.9.

Inquiry #3:

When a lawyer seeks advice from a lawyer-

mentor on the representation of a client of

the lawyer, what actions should be taken to

protect confidential client information?

Opinion #3:

If possible, the lawyer should try to

obtain guidance without disclosing identify-

ing client information, which can be done by

using a hypothetical. If the consultation is

general and does not involve the disclosure of

identifying client information, no client con-

sent is necessary and the lawyers do not have

to comply with the requirements set out in

Opinion #2.

If the consultation is intended to help the

lawyer-mentee comply with the ethics rules,

no client consent is necessary and the lawyers

do not have to comply with the requirements

set out in Opinion #2. Rule 1.6(b)(5) pro-

vides that a lawyer may reveal protected

client information to the extent the lawyer

reasonably believes necessary “to secure legal

advice about the lawyer's compliance with

[the Rules of Professional Conduct].”

Pursuant to Comment [10] to Rule 1.6:

A lawyer's confidentiality obligations do

not preclude a lawyer from securing con-

fidential legal advice about the lawyer's

personal responsibility to comply with

[the Rules of Professional Conduct]. In

most situations, disclosing information to

secure such advice will be impliedly

authorized for the lawyer to carry out the

representation. Even when the disclosure

is not impliedly authorized, paragraph

FALL 2014

Public Information

The Ethics Committee’s meetings are

public, and materials submitted for con-

sideration are generally NOT held in

confidence. Persons submitting requests

for advice are cautioned that inquiries

should not disclose client confidences or

sensitive information that is not neces-

sary to the resolution of the ethical ques-

tions presented.

Citation

To foster consistency in citation to

the North Carolina Rules of Professional

Conduct and the formal ethics opinions

adopted by the North Carolina State Bar

Council, the following formats are rec-

ommended:

· To cite a North Carolina Rule of

Professional Conduct: NC Rules of

Prof’l Conduct Rule 1.1 (2003)

· To cite a North Carolina formal

ethics opinion: NC State Bar Formal

Op. 1 (2011)

Note that the current, informal

method of citation used within the for-

mal ethics opinions themselves and in

this Journal article will continue for a

transitional period.

(b)(5) permits such disclosure because of

the importance of a lawyer's compliance

with the Rules of Professional Conduct.

If the consultation does not involve

advice about the lawyer’s compliance with

the Rules of Professional Conduct, a hypo-

thetical is not practical, or making the

inquiry risks disclosure of information relat-

ing to the representation, the lawyer-mentee

must comply with the requirements set out

in Opinion #2.

Both the lawyer-mentee and the lawyer-

mentor should avoid the creation of a con-

flict of interest with any existing or former

clients by virtue of the mentoring relation-

ship. For example, the lawyer-mentee

should not consult with a lawyer he knows

has represented the opposing party in the

past without first ascertaining that the mat-

ters are not substantially related, and that

the opposing party is not represented in the

current matter by the lawyer-mentor.

Similarly, the lawyer-mentor should obtain

information sufficient to determine that the

lawyer-mentee’s matter is not one affecting

the interests of an existing or former client.

Rule 1.7 and Rule 1.9.

Proposed 2014 Formal Ethics

Opinion 7

Use of North Carolina Subpoena to

Obtain Documents from Foreign Entity

or Individual

July 24, 2014

Proposed opinion rules that a lawyer may

provide a foreign entity or individual with a

North Carolina subpoena accompanied by a

statement/letter explaining that the subpoena is

not enforceable in the foreign jurisdiction, the

recipient is not required to comply with the sub-

poena, and the subpoena is being provided sole-

ly for the recipient’s records.

Editor's note: This opinion supplements

and clarifies 2010 FEO 2, Obtaining Medical

Records from Out of State Health Care

Providers.

Inquiry #1:

In a state legal matter, a lawyer wishes to

obtain documents from a medical provider

or other entity that is not located in North

Carolina and does not have a registered agent

in the state (foreign entity). The lawyer con-

tacts the foreign entity and requests the doc-

uments. The lawyer informs the foreign enti-

ty that the subpoena power set out in N.C.

R. Civ. P. 45 does not extend to the foreign

jurisdiction. The foreign entity indicates that

it will comply with the request for docu-

ments upon the receipt of a North Carolina

subpoena “for its records.”

May the lawyer provide the foreign entity

with a North Carolina subpoena accompa-

nied by a statement/letter explaining that the

subpoena is not enforceable in the foreign

jurisdiction and is provided to the entity

solely for the entity’s records?

Opinion #1:

Yes. Rule 8.4(c) states that it is profession-

al misconduct for a lawyer to engage in con-

duct involving dishonesty, fraud, deceit, or

misrepresentation. RPC 236 provides that it

is false and deceptive for a lawyer to use the

subpoena process to mislead the custodian of

documentary evidence as to the lawyer's

authority to require the production of such

documents. 2010 FEO 2 prohibits a lawyer’s

use of a subpoena to request medical records

under the authority of Rule 45 knowing that

the North Carolina subpoena is unenforce-

able. 2010 FEO 2 explains that if “the North

Carolina subpoena is not enforceable out of

state, the lawyer may not misrepresent to the

out of state health care provider that it must

comply with the subpoena.”

RPC 236 and 2010 FEO 2 prohibit a

lawyer from making misrepresentations to

the subpoena recipient that the lawyer has

the legal authority to issue the subpoena

under Rule 45 or misleading the recipient as

to whether compliance with the subpoena is

required by law.

If the subpoena is accompanied by a

statement/letter explaining that the subpoe-

na is not enforceable in the foreign jurisdic-

tion, the recipient is not required to comply

with the subpoena, and the subpoena is

being provided solely for the entity’s records,

the lawyer has not made misrepresentations

to, nor misled, the subpoena recipient. The

subpoena recipient is aware that it cannot be

compelled to comply with the subpoena and

may determine whether to provide the

requested documents voluntarily.

Inquiry #2:

Would the answer differ if the lawyer

wishes to obtain the appearance and testimo-

ny of an individual over which the North

Carolina court does not have in personam

jurisdiction?

Opinion #2:

No. If an individual requests a North

Carolina subpoena, knowing that the North

Carolina court lacks in personam jurisdiction

over the individual and the subpoena will

not be enforceable, the lawyer may provide

the individual with the subpoena, accompa-

nied by a statement/letter explaining that the

subpoena is not enforceable as to the individ-

ual and is being provided solely at the indi-

vidual’s request.

Proposed 2014 Formal Ethics

Opinion 8

Accepting an Invitation from a Judge

to Connect on LinkedIn

July 24, 2014

Proposed opinion rules that a lawyer may

accept an invitation from a judge to be a “con-

THE NORTH CAROLINA STATE BAR JOURNAL

Rules, Procedure,

Comments

All opinions of the Ethics

Committee are predicated upon the

Rules of Professional Conduct as revised

effective March 1, 2003, and thereafter

amended, and referred to herein as the

Rules of Professional Conduct (2003).

The proposed opinions are issued pur-

suant to the “Procedures for Ruling on

Questions of Legal Ethics.” 27

N.C.A.C. ID, Sect .0100. Any interest-

ed person or group may submit a writ-

ten comment or request to be heard

concerning a proposed opinion. Any

comment or request should be directed

to the Ethics Committee at PO Box

25908, Raleigh, NC 27611, by

September 30, 2014.

Captions and

Headnotes

A caption and a short description of

each of the proposed opinions precedes

the statement of the inquiry. The cap-

tions and descriptions are provided as

research aids and are not official state-

ments of the Ethics Committee or the

council.

FALL 2014

nection” on a professional networking website,

and may endorse a judge. However, a lawyer

may not accept a legal skill or expertise endorse-

ment or recommendation from a judge.

Facts:

Lawyer has a profile listing on LinkedIn,

a social networking website for people in

professional occupations. The website allows

registered users (“members”) to maintain a

list of contact details on their LinkedIn pages

for people with whom they have some level

of relationship via the website. These con-

tacts are called “connections.” Members can

invite anyone (whether a site user or not) to

become a connection.

LinkedIn can be used to list jobs and

search for job candidates, to find employ-

ment, and to seek out business opportuni-

ties. Members can view the connections of

other members, post their photographs, and

view the photos of other members. Members

can post comments on another member’s

profile page. Members can also endorse or

write recommendations for other members.

Such endorsements or recommendations, if

accepted by the recipient, are posted on the

recipient’s profile listing.

Inquiry #1:

May a lawyer with a professional profile

on LinkedIn accept an invitation to connect

from a judge?

Opinion #1:

Yes. Interactions with judges using social

media are evaluated in the same manner as

personal interactions with a judge, such as an

invitation to dinner. In certain scenarios, a

lawyer may accept a judge’s dinner invita-

tion. Similarly, in certain scenarios a lawyer

may accept a LinkedIn invitation to connect

from a judge. However, if a lawyer represents

clients in proceedings before a judge, the

lawyer is subject to the following duties: to

avoid conduct prejudicial to the administra-

tion of justice; to not state or imply an ability

to influence improperly a government

agency or official; and to avoid ex parte com-

munications with a judge regarding a legal

matter or issue the judge is considering. See

Rule 3.5 and Rule 8.4. These duties may

require the lawyer to decline a judge’s invita-

tion to connect on LinkedIn.

Rule 8.4(d) provides that it is profession-

al misconduct for a lawyer to “engage in

conduct that is prejudicial to the administra-

tion of justice.” Rule 8.4(e) provides that it

is professional misconduct for a lawyer to

“state or imply an ability to influence

improperly a government agency or offi-

cial.” Lawyers have an obligation to protect

the integrity of the judicial system and to

avoid creating an appearance of judicial par-

tiality. See 2005 FEO 1.

If a lawyer receives an invitation to con-

nect from a judge during the pendency of a

matter before the judge, and the lawyer con-

cludes that accepting the invitation will

impair the lawyer’s compliance with these

duties, the lawyer should not accept the

judge’s invitation to connect until the matter

is concluded. The lawyer may communicate

to the judge the reason the lawyer did not

accept the judge’s invitation. Such a commu-

nication with the judge is not a prohibited ex

parte communication provided the commu-

nication does not include a discussion of the

underlying legal matter.

Rule 3.5 prohibits lawyers from engaging

in ex parte communications with a judge.

Because connected members can post com-

ments on each other’s profile pages, the con-

nection between a judge and a lawyer

appearing in a matter before the judge could

lead to improper ex parte communications.

Therefore, while the lawyer has a matter

pending before a judge, the lawyer may not

use LinkedIn or any other form of social

media to communicate with the judge about

the pending matter.

Rule 8.4(f) provides that it is professional

misconduct for a lawyer to “knowingly assist

a judge or judicial officer in conduct that is a

violation of applicable rules of judicial con-

duct or other law.” To the extent that a judge

is prohibited by the North Carolina Code of

Judicial Conduct from participating in

LinkedIn, or from sending invitations to

connect to lawyers, a lawyer may not assist

the judge in violating such prohibitions.

Inquiry #2:

May the lawyer send an invitation to con-

nect to a judge?

Opinion #2:

Yes, subject to the limitations described in

Opinion #1.

Inquiry #3:

A LinkedIn member has the option of

displaying a “skills & expertise” section with-

in his profile. A member can add items to the

“skills & expertise” section of his profile

page. In addition, some connections can add

a new item to another member’s “skills &

expertise” section, can “endorse” a skill or

expertise already listed for the member, or

write a recommendation for the member. A

member who is being endorsed by another

member will receive a notification contain-

ing the identity of the endorser and the spe-

cific skill or expertise that is being endorsed.

The member may decline the endorsement

entirely or choose the specific endorsements

to be displayed. The endorsed member may

also subsequently edit the “skills & expertise”

section to “hide” selected endorsements. If a

member endorses another member, and the

endorsement is not declined by the recipient,

the endorser’s name and profile picture will

appear next to the skill on the endorsed

member’s profile.

A recommendation is a comment written

by a LinkedIn member to recognize or com-

mend another member. When someone rec-

ommends a member, the recommended

member will receive a message in the recom-

mended member’s LinkedIn inbox and a

notification on the member’s “Manage

Recommendations” page. Recommendations

are only visible to connections. A member

can choose to hide a recommendation from

the member’s profile, but cannot delete it.

Recommendations written for others can be

withdrawn or revised.

May a lawyer endorse a judge’s legal skills

or expertise, or write a recommendation on

the judge’s profile page?

Opinion #3:

Yes, subject to the limitations explained in

Opinion #1.

Inquiry #4:

May a lawyer accept an endorsement or

recommendation from a judge and display

the endorsement or recommendation on his

profile page?

Opinion #4:

No. Displaying an endorsement or rec-

ommendation from a judge on a lawyer’s

profile page would create the appearance of

judicial partiality and the lawyer must

decline. See Rule 8.4(e).

Inquiry #5:

May a lawyer accept and post endorse-

ments and recommendations on his

LinkedIn profile page from persons other

than judges?

Opinion #5:

Lawyers are professionally obligated to

ensure that communications about the

lawyer or the lawyer’s services are not false or

misleading. See Rule 7.1(a). Provided that

the content of the endorsement or recom-

mendation is truthful and not misleading in

compliance with the requirements of Rule

7.1, the lawyer may post endorsements and

recommendations from persons other than

judges on the lawyer’s LinkedIn profile page.

See 2012 FEO 8.

Inquiry #6:

A lawyer previously accepted and dis-

played on his LinkedIn profile page an

endorsement or recommendation from a

lawyer who subsequently became a judge. Is

the lawyer required to remove the endorse-

ment or recommendation from the lawyer’s

profile?

Opinion #6:

Yes. See Opinion #4.

Inquiry #7:

Do the holdings in this opinion apply to

other social media applications such as

Facebook, Twitter, Google+, Instagram, and

Myspace?

Opinion #7:

The holdings apply to any social media

application that allows public display of con-

nections, endorsements, or recommenda-

tions between lawyers and judges.

Proposed 2014 Formal Ethics

Opinion 9

Private Lawyer Supervision of

Investigation Involving

Misrepresentation

July 24, 2014

Proposed opinion rules that a private lawyer

may supervise an investigation involving mis-

representation if certain conditions are satisfied.

Note: This opinion does not apply to the

conduct of a government lawyer. As

explained in comment [1] to Rule 8.4, the

prohibition in Rule 8.4(a) against knowingly

assisting another to violate the Rules of

Professional Conduct or violating the Rules

of Professional Conduct through the acts of

another does not prohibit a government

lawyer from providing legal advice to investi-

gatory personnel relative to any action such

investigatory personnel are lawfully entitled

to take.

In addition, this opinion is limited to pri-

vate lawyers who advise, direct, or supervise

conduct involving dishonesty, deceit, or mis-

representation as opposed to a lawyer who

personally participates in such conduct.

Inquiry:

Attorney A was retained by Client C to

investigate and, if appropriate, file a lawsuit

against Client C’s former employer, E.

Employer E employed Client C as a janitor

and required him to work 60 hours per

week. E paid Client C a salary of $400 per

week. Attorney A believes that because his

client’s employment was a “non-exempt posi-

tion” under the North Carolina Wage and

Hour Act, the payment method used by E

was unlawful. Instead, E should have paid

Client C at least $7.25 (minimum wage) per

hour for each of the first 40 hours Client C

worked per week, and at least $10.88 (time

and a half) for each hour in excess of 40

(overtime) that Client C worked per week.

Prior to filing a lawsuit, Attorney A wants

to retain a private investigator to investigate

E’s payment practices. The private investiga-

tor suggests using lawful, but misleading or

deceptive tactics, to obtain the information

Attorney A seeks. For example, the private

investigator may pose as a person interested

in being hired by E in the same capacity as

Client C to see if E violates the North

Carolina Wage and Hour Act when compen-

sating the investigator.

Prior to filing a lawsuit, may Attorney A

retain a private investigator who will misrep-

resent his identity and purpose when con-

ducting an investigation into E’s payment

practices?

Opinion:

Rule 8.4(c) provides that it is profes-

sional misconduct for a lawyer to “engage

in conduct involving dishonesty, fraud,

deceit, or misrepresentation.” This prohi-

bition is extended to third parties acting at

the direction of a lawyer by Rule 8.4(a).

However, the Rules of Professional

Conduct are rules of reason. Rule 0.2,

Scope. Therefore, not every act of dishon-

esty, deceit, or misrepresentation consti-

tutes professional misconduct.

Other jurisdictions have interpreted their

Rules of Professional Conduct to permit

lawyer supervision of investigations involv-

ing misrepresentation in circumstances sim-

ilar to that set out in the inquiry. For exam-

ple, the bars of Arizona and Maryland per-

mit lawyers to use “testers” who employ mis-

representation to collect evidence of dis-

criminatory practices. Ariz. State Bar

Comm. on the Rules of Prof’l Conduct,

Op. 99-11 (1999); Maryland Bar Ass'n, Op.

2006-02 (2005). These ethics opinions con-

clude that testers are necessary to prove dis-

criminatory practices and, therefore, serve

an important public policy. The State Bar of

Arizona opined that it would be inconsistent

with the intent of the Rules of Professional

Conduct to interpret the rules to prohibit a

lawyer from supervising the activity of

testers. Ariz. State Bar Comm. on the Rules

of Prof’l Conduct, Op. 99-11 (1999).

The intent of Rule 8.4 is set out in com-

ment [3] to the rule: “The purpose of profes-

sional discipline for misconduct is not pun-

ishment, but to protect the public, the

courts, and the legal profession.” The chal-

lenge is to balance the public’s interest in

having unlawful activity fully investigated

and possibly thereby stopped, with the pub-

lic’s and the profession’s interest in ensuring

that lawyers conduct themselves with integri-

ty and honesty. In an attempt to balance

these two important interests, we conclude

that a lawyer may advise, direct, or supervise

an investigation involving pretext under cer-

tain limited circumstances.

A lawyer may advise, direct, or supervise

the use of misrepresentation (1) in lawful

efforts to obtain information on unlawful

activity; (2) in the investigation of violations

of criminal law, civil law, or constitutional

rights; (3) if the lawyer’s conduct is otherwise

in compliance with the Rules of Professional

Conduct; (4) the lawyer has a good faith

belief that there is a reasonable possibility

that a violation of criminal law, civil law, or

constitutional rights has taken place, is tak-

ing place, or will take place in the foreseeable

future; (5) misrepresentations are limited to

identity or purpose; and (6) the evidence

sought is not reasonably and readily available

through other means.

If Attorney A concludes that each of the

conditions is satisfied, he may retain a private

investigator to conduct an investigation into

E’s payment practices which investigation

may include misrepresentations as to identity

and purpose.

THE NORTH CAROLINA STATE BAR JOURNAL

FALL 2014

magine that you have been

wrongly accused of a crime that

is punishable by death. Because

you are incarcerated, you have

been forced to close down your

law practice. With no income,

you are unable to retain a private defense

lawyer. Therefore, you are being defended

by a court-appointed lawyer. Eager to learn

what evidence the state has against you, you

ask to see the discovery. Your lawyer reviews

the discovery and provides you with his

summary of the relevant discovery materials.

Anxious and unsatisfied, you request the

opportunity to review the complete discov-

ery file. Do the Rules of Professional

Conduct require your lawyer to comply

with your request?

Now imagine that you have been court-

appointed to represent a defendant in a cap-

ital case. While awaiting trial, the incarcerat-

ed defendant has had several amorous tele-

phone conversations with his girlfriend, all

of which have been recorded per prison reg-

ulations. The recordings are included in the

discovery materials provided to you by the

state. Your paralegal reviews the 17 plus

hours of recordings and determines that

they contain no information relevant to

your client’s legal defense. After providing

the defendant with your summary of the rel-

evant discovery materials, the defendant

requests the opportunity to personally

review all of the discovery, including the

recordings of the telephone conversations. It

is not permissible to leave the discovery with

the defendant in the jail. Therefore, one of

your staff members will have to travel to the

jail and sit with the defendant while he

reviews the written discovery and listens to

the recordings. Do the Rules of Professional

Conduct require you to comply with the

defendant’s request?

Rule 1.4 provides that a lawyer shall keep

a client reasonably informed about the status

of a matter and promptly comply with rea-

sonable requests for information. The two

scenarios above demonstrate that what is

“reasonable” may be in the eyes of the

beholder.

A recently adopted ethics opinion

attempts to give guidance to lawyers faced

with such discovery review requests.

Pursuant to 2013 FEO 2 (adopted

1/24/2014), if, after providing a criminal

client with a summary of the discovery

materials, the client requests access to the

entire discovery file, the lawyer must afford

the client the opportunity to review all of

the “relevant” discovery materials unless the

lawyer believes it is not in the best interest of

the client’s legal defense to comply with the

request. In determining what discovery

materials are relevant, and what disclosure is

in the best interest of the client’s legal

defense, the lawyer must exercise his inde-

pendent professional judgment.

The content of 2013 FEO 2 was, and

continues to be, hotly debated. Some lawyers

believe a criminal defense client is absolutely

entitled to review everything in the client’s

file. Other lawyers argue that a criminal

defense lawyer has absolute discretion to

determine what file materials to disclose to a

criminal client. Rule 1.2 discusses the general

allocation of authority between the lawyer

and the client. The rule provides that a lawyer

must abide by a client's decisions concerning

the objectives of representation and, as

required by Rule 1.4, shall consult with the

client as to the means by which they are to be

pursued. Comment [2] to Rule 1.2 notes that

clients “normally defer to the special knowl-

edge and skill of their lawyer with respect to

the means to be used to accomplish their

objectives, particularly with respect to techni-

cal, legal, and tactical matters.”

Query: Is a criminal defense lawyer’s

decision on whether to provide a client with

unlimited access to discovery materials a

matter of trial strategy and judgment that

ultimately lies within the lawyer’s discretion?

There are genuine concerns underlying

the continuing discussion: the limited

resources available to represent indigent

defendants; the practical difficulties in pro-

viding discovery review to an incarcerated

defendant; the sheer volume of discovery

produced pursuant to open discovery laws;

and the desire to provide equal access to jus-

tice to all criminal defendants.

2013 FEO 2 attempts to address these

sometimes competing concerns in the con-

text of a lawyer’s duties under the Rules of

Professional Conduct. Of paramount

importance in the drafting was the desire to

craft an ethics opinion that did not differen-

tiate a lawyer’s professional responsibilities

to clients based on the client’s location or

ability to pay for the lawyer’s services.

The Ethics Committee continued to

debate 2013 FEO 2 even after its adoption.

Given the importance of the issues

addressed in the opinion, as well as the

necessity for immediate guidance for crimi-

nal defense lawyers, the Ethics Committee

took an unusual step at its meeting on July

24, 2014, by voting to publish for comment

an alternative version of the opinion.

Without substantially changing the con-

clusions in 2013 FEO 2, the alternative pro-

posed opinion emphasizes that, in determin-

ing what discovery materials are relevant and

what disclosure is in the best interest of the

client’s legal defense, the lawyer must exer-

cise his or her independent professional

judgment in the context of the critical deci-

sions that are exclusively those of the crimi-

nal defendant. Under Rule 1.2(a)(1), the

client in a criminal case has the authority to

decide the “plea to be entered, whether to

waive a jury trial, and whether [to] testify.”

The opinion draws the connection between

these decisions and the duty to keep the

client reasonably informed and to respond

Grappling with the Duty to Inform When a

Client is Incarcerated

B Y S UZANNE L EVER

LEGAL ETHICS

THE NORTH CAROLINA STATE BAR JOURNAL

to requests for information. The alternative

proposed opinion states that a criminal

defense lawyer complies with the require-

ment of Rule 1.4 to keep a client “reasonably

informed” by providing the client with

information sufficient to make these impor-

tant decisions.

The two opinions also differ slightly as to

the criteria for withholding relevant discov-

ery from a criminal defense client. The

adopted opinion provides that a lawyer may

withhold relevant discovery if withholding

the information is in the best interest of the

client’s legal defense. The adopted opinion

adds that the defense lawyer may redact

information that would endanger the safety

and welfare of the client or others, violate a

court rule or order, or is subject to a protec-

tive order or nondisclosure agreement. The

acceptable justifications for withholding rel-

evant discovery in the alternative opinion are

expanded to include discovery agreements

and time constraints due to the volume of

discovery and deadlines for trial or pleas.

Query: Does the adopted opinion allow

more discretion to the lawyer because it does

not specify the conditions under which a

lawyer may withhold review of discovery

from an incarcerated client, or is more spe-

cific guidance, as provided in the alternative

opinion, preferable?

Comments on the adopted opinion as

well as the alternative draft will be consid-

ered at the October ethics meeting.

Suzanne Lever is assistant ethics counsel for

the North Carolina State Bar.

Providing Discovery to an Incarcerated

Client

At its meeting on July 24, 2014, the

Ethics Committee considered a motion to

recommend that the State Bar Council

withdraw existing ethics opinion 2013 FEO

4, which was adopted by the Council in

January of this year, and to publish a pro-

posed substitute opinion. The motion failed

but a second motion, to publish the pro-

posed substitute opinion for comment,

passed. It was agreed that the existing opin-

ion would be published together with the

substitute so that members of the bar could

compare and offer comment on whether the

substitute, by providing additional or differ-

ent guidance, should supersede the existing

opinion. Comments are strongly encour-

aged and should be directed to the Ethics

Committee at PO Box 25908, Raleigh, NC

27611, by September 30, 2014.

2013 FEO 2

Providing Defendant with Discovery

During Representation

January 24, 2014

Opinion rules that if, after providing a

criminal client with a summary/explanation

of the discovery materials in the client’s file,

the client requests access to the entire file, the

lawyer must afford the client the opportunity

to meaningfully review all of the relevant dis-

covery materials unless the lawyer believes it is

in the best interest of the client’s legal defense

not to do so.

Inquiry #1:

Lawyer represents Defendant in a crim-

inal case. The state has provided Lawyer

with discovery as PDF files. The state has

also provided Lawyer DVDs containing

copies of the video recordings of interroga-

tions of Defendant and a codefendant; sur-

veillance videotapes; and audio recordings

of calls made by Defendant and the code-

fendant from the jail.

Lawyer reviewed the discovery and pro-

vided Defendant with a summary of the evi-

dence. Defendant demands that he be pro-

vided a copy of the entire 1,200 pages of dis-

covery and be allowed to view/listen to the

17 hours of video and audio recordings.

Does Lawyer have an ethical duty to

comply with the client’s demand?

Opinion #1:

As a matter of professional responsibili-

ty, Rule 1.4 requires a lawyer to “keep a

client reasonably informed about the status

of a matter” and “promptly comply with

reasonable requests for information.” As

stated in comment [5] to Rule 1.4:

The client should have sufficient infor-

mation to participate intelligently in

decisions concerning the objectives of the

representation and the means by which

they are to be pursued...The guiding

principle is that the lawyer should fulfill

reasonable client expectations for infor-

mation consistent with the duty to act in

the client's best interests, and the client's

overall requirements as to the character

of representation.

The duties set out in Rule 1.4 are simi-

lar to those found in ABA Standards for

Criminal Justice, Defense Functions,

Standard 4-3.8 (3d ed. 1993) which pro-

vides:

(a) Defense counsel should keep the

client informed of the developments in

the case and the progress of preparing

the defense and should promptly com-

ply with reasonable requests for infor-

mation.

(b) Defense counsel should explain

developments in the case to the extent

reasonably necessary to permit the client

to make informed decisions regarding

the representation.

During the course of the representation,

the lawyer complies with the requirements

of Rule 1.4 by providing the client with a

summary of the discovery materials and

consulting with the client as to the rele-

vance of the materials to the client’s case.

However, if the lawyer has provided the

client with a summary/explanation of the

discovery materials and the client, nonethe-

less, requests copies of any of the file mate-

rials, the lawyer must afford the client the

opportunity to meaningfully review all of

the relevant discovery material unless the

lawyer believes it is in the best interest of

the client’s legal defense to deny the

request. The lawyer is not required to pro-

vide the client with a physical copy of the

discovery materials during the course of the

representation.

In determining what discovery materials

are relevant, and what disclosure is in the

best interest of the client’s legal defense, the

lawyer must exercise his or her independent

professional judgment. As stated in com-

ment [5] to Rule 1.4: “The guiding princi-

ple is that the lawyer should fulfill reason-

able client expectations for information

consistent with the duty to act in the

client's best interests, and the client's over-

all requirements as to the character of rep-

resentation.” However, as stated in com-

ment [7] to Rule 1.4, a lawyer “may not

withhold information to serve the lawyer’s

own interest or convenience or the interest

or convenience of another person.”

Therefore, the lawyer may not deny the

request due to issues of expense or incon-

venience.

Inquiry

#2:

If Lawyer provides Defendant with a

copy of, or access to, discovery materials,

may Lawyer redact or otherwise remove

FALL 2014

private information of a third person, such

as the address of a witness or pictures of an

alleged rape victim?

Opinion #2:

The lawyer may redact or otherwise

remove information that the lawyer deter-

mines, in his professional discretion, should

not be disclosed to the client, including infor-

mation that would endanger the safety and

welfare of the client or others, violate a court

rule or order, or is subject to any protective

order or nondisclosure agreement. See Rule

1.4, cmt. [7].

Proposed Substitute for 2013 Formal

Ethics Opinion 2

Providing Incarcerated Defendant with

Opportunity to Review Discovery

Materials

July 24, 2014

Proposed substitute opinion rules that if,

after providing an incarcerated criminal client

with a summary/explanation of the discovery

materials in the client’s file, the client requests

access to any of the discovery materials, the

lawyer must afford the client the opportunity to

meaningfully review relevant discovery materi-

als unless certain conditions exist.

Inquiry #1:

Lawyer represents Defendant in a criminal

case. The state has provided Lawyer with dis-

covery as PDF files. The state has also given

Lawyer DVDs containing copies of the video

recordings of interrogations of Defendant

and a codefendant; surveillance videotapes;

and audio recordings of calls made by

Defendant and the codefendant from the jail.

Lawyer reviewed the discovery and pro-

vided Defendant with a summary of the evi-

dence. Defendant demands that he be pro-

vided a copy of the entire 1,200 pages of dis-

covery and be allowed to view/listen to the 17

hours of video and audio recordings.

Does Lawyer have an ethical duty to com-

ply with the client’s demand?

Opinion #1:

As a matter of professional responsibility,

Rule 1.4 requires a lawyer to “keep a client

reasonably informed about the status of a

matter” and “promptly comply with reason-

able requests for information.” As stated in

comment [5] to Rule 1.4:

The client should have sufficient infor-

mation to participate intelligently in deci-

sions concerning the objectives of the rep-

resentation and the means by which they

are to be pursued...The guiding principle

is that the lawyer should fulfill reasonable

client expectations for information con-

sistent with the duty to act in the client's

best interests, and the client's overall

requirements as to the character of repre-

sentation.

The duties set out in Rule 1.4 are similar

to those found in ABA Standards for

Criminal Justice, Defense Functions,

Standard 4-3.8 (3d ed. 1993) which provides:

(a) Defense counsel should keep the client

informed of the developments in the case

and the progress of preparing the defense

and should promptly comply with reason-

able requests for information.

(b) Defense counsel should explain devel-

opments in the case to the extent reason-

ably necessary to permit the client to make

informed decisions regarding the repre-

sentation.

Under Rule 1.2(a)(1), the client in a crim-

inal case has the authority to decide, “after

consultation with the lawyer, as to a plea to be

entered, whether to waive a jury trial, and

whether the client will testify.” During the

course of the representation, a criminal

defense lawyer complies with the require-

ments of Rule 1.4 to keep a client “reasonably

informed” by providing the client with suffi-

cient information to make informed deci-

sions about these important issues. This obli-

gation is fulfilled by providing the client with

a summary of the discovery materials and

consulting with the client as to the relevance

of the materials to the client’s case. If the

lawyer has provided the client with a summa-

ry/explanation of the discovery materials and

the client, nonetheless, requests copies of or

asks to review any of the file materials, the

duty to comply with reasonable requests for

information requires the lawyer to afford the

client the opportunity to meaningfully review

relevant discovery material unless one or

more of the following conditions exist: (1) the

lawyer believes it is in the best interest of the

client’s legal defense to deny the request; (2) a

protective order or court rule limiting the dis-

covery materials that may be shown to the

defendant or taken to a jail or prison is in

effect; (3) such review is prohibited by the

specific terms of a discovery agreement

between the prosecution and the defense

lawyer; (4) because of circumstances beyond

the defense counsel’s control, such review is

not feasible in light of the volume of discov-

ery materials and the time remaining before

trial or before a decision must be made by the

client on a plea offer; or (5) disclosure of the

discovery materials will endanger the safety or

welfare of the client or others.

In determining what discovery materials

are relevant, and what disclosure is in the best

interest of the client’s legal defense, the lawyer

must exercise his or her independent profes-

sional judgment in the context of the deci-

sions that the defendant must make about

what plea to enter, whether to waive jury trial,

and whether to testify. See Rule 1.2(a)(1). As

noted above: “The guiding principle is that

the lawyer should fulfill reasonable client

expectations for information consistent with

the duty to act in the client's best interests,

and the client's overall requirements as to the

character of representation.” Rule 1.4, cmt.

[5]. However, as stated in comment [7] to

Rule 1.4, a lawyer “may not withhold infor-

mation to serve the lawyer’s own interest or

convenience or the interest or convenience of

another person.” Therefore, the lawyer may

not deny the request due to issues of expense

or inconvenience.

Regardless of whether the lawyer deter-

mines that the client should have an opportu-

nity to review some or all of the discovery

materials, the lawyer is not required to pro-

vide the client with a physical copy of the dis-

covery materials during the course of the rep-

resentation.

Inquiry #2:

If Lawyer provides Defendant with a copy

of, or access to, discovery materials, may

Lawyer redact or otherwise remove private

information of a third person, such as the

address of a witness or pictures of an alleged

rape victim?

Opinion #2:

The lawyer may redact or otherwise

remove information that the lawyer deter-

mines, in his professional judgment, should

not be disclosed to the client, including infor-

mation that would endanger the safety and

welfare of the client or is subject to a protec-

tive order, court rule, or agreement prohibit-

ing disclosure. See Rule 1.4, cmt. [7]. n

Endnote

1. Discovery agreements between the prosecution and the

defense may present other ethical concerns not

addressed in this opinion.

THE NORTH CAROLINA STATE BAR JOURNAL

All of the law schools located in North

Carolina are invited to provide material for this

column. Below are the submissions we received

this quarter.

Campbell University School of Law

Campbell Law Confers 150 Degrees at

2014 Graduation—Campbell Law School

conferred 150 Juris Doctor degrees at its 36th

annual hooding and graduation ceremony on

May 9 at Meymandi Concert Hall at the

Duke Energy Center for the Performing Arts.

Red Hat President and Chief Executive

Officer Jim Whitehurst delivered the com-

mencement address.

The National Jurist Names Campbell Law

to List of Top Private Law Schools for Best

Value—Campbell Law School has been

named to a list of the top 22 private law

schools in the country for best value by The

National Jurist. In selecting institutions for

inclusion, the publication considered a num-

ber of academic and financial variables,

including price of tuition, student debt accu-

mulation, employment success, bar passage,

and cost of living figures.

Campbell Law Invited to Participate in

NITA Tournament of Champions—

Campbell Law School has received an invita-

tion to the prestigious National Institute of

Trial Advocacy’s Tournament of

Championships mock trial competition. One

of the premier mock trial competitions in the

country, only 16 law schools are invited to the

Tournament of Champions.

Campbell Law Students Awarded WCBA

Scholarships—Campbell Law School students

Amanda Brookie and Emily Pappas have been

awarded Wake County Bar Association

Memorial Scholarships for the upcoming aca-

demic year. Brookie, a rising second year stu-

dent, and Pappas, a rising third year, formally

received their $5,000 scholarships during a

presentation at a recent WCBA luncheon on

June 3 at the Women’s Club of Raleigh.

Benton named NCBA President-Elect—

Shelby Duffy Benton, a 1985 Campbell Law

graduate, has been named president-elect of

the North Carolina Bar Association. She is the

first Campbell Law graduate to serve the

NCBA in this capacity.

Charlotte School of Law

Student Success Program—Charlotte

School of Law’s mission is to provide leader-

ship in meeting the evolving needs of the pro-

fession and in unlocking the potential of stu-

dents. To further those commitments,

Charlotte will launch this fall its Student

Success Program, a comprehensive addition to

its program of education that is unique to

American legal education. The purpose of the

program is to systematically develop key com-

petencies vital to success in law school, on the

bar exam, in job search and career develop-

ment, and in professional endeavor. Initially

the program will focus on the competency

clusters of grit, professionalism, and emotion-

al intelligence (self-awareness and relationship

building). The competencies will be devel-

oped through integration into the pedagogy

of small classes, a graduation requirement that

calls on students to complete activities or

assessments throughout the three years, and

training law school staff to support and rein-

force development of these competencies.

Partnership with Yingke Law Firm—

Charlotte has entered into a partnership with

the Yingke Law Firm for the law school to

provide training programs to lawyers in the

firm. Yingke is the largest law firm in the

Asian-Pacific region with 2,400 lawyers in 40

offices in major commercial regions around

the world. The educational programs will pro-

vide lawyers based in China with substantive

training in US business law and other areas

important to the work of Yingke lawyers.

Ms. JD Fellowship—Charlotte student

Lexi Andresen has been selected as one of 15

recipients of the Ms. JD Fellowship. The fel-

lowship, awarded in partnership with the

ABA Commission on Women in the

Profession, recognizes academic performance,

leadership, and dedication to advancing the

status of women in the profession. Fellows are

provided with a mentor who has been a win-

ner of the ABA Brent Award. Andresen is the

first fellowship recipient from a North

Carolina law school.

Duke Law School

New Civil Justice Clinic Focuses on Civil

Litigation Assistance for Low-Income

Clients—Duke Law School has launched the

Civil Justice Clinic, the school’s tenth clinical

program. A partnership between Duke Law

and Legal Aid of North Carolina (LANC),

the clinic has the dual focus of providing sub-

stantive legal assistance to low-income clients

who have little access to civil justice, as well as

facilitating students’ development of practical

litigation skills that are readily translatable to a

wide variety of cases and practice areas. For

students, the clinic includes a substantive

weekly seminar, direct client representation,

and individual supervision and instruction

from Duke faculty and LANC attorneys.

The clinic, which is based out of the

Durham LANC office, is directed by Charles

R. Holton, a partner at Womble Carlyle

Sandridge & Rice in Research Triangle Park

who currently chairs the LANC Board of

Directors. He is a longstanding member of the

local advisory committee for LANC's

Durham office and was named Pro Bono

Attorney of the Year for 2013 by the North

Carolina Bar Association.

Student-Run Cancer Pro Bono Project

Honored by NCBA—The Duke-UNC

Cancer Pro Bono Project was honored in June

with the North Carolina Bar Association’s

2014 Law Student Group Pro Bono Award.

The project represents a partnership between

Duke Law School, UNC School of Law, and

the Duke and UNC Cancer Centers. Under

the supervision of volunteer attorneys, law

students hold advanced directive clinics at

each cancer center twice each month, where

they interview patients to assess their legal

needs and educate them on matters related to

advanced directives. They draft the relevant

documents for their clients and, with their

supervisors, facilitate their review and execu-

tion by the patient-clients.

Elon University School of Law

National Symposium Advances Experiential

BAR UPDATES

Law School Briefs

FALL 2014

Education in Law—A June 13-15 national

symposium at Elon Law featured research

findings about the educational value of immer-

sive and recurring legal practice experiences for

law students. Elon welcomed more than 150

participants from the US and Canada includ-

ing members of the legal academy and profes-

sion, and representatives from other disciplines

including architecture, business, and medicine.

“This is not just about clinical legal educa-

tion,” said Luke Bierman, dean and professor

of law at Elon. “This is not just about extern-

ships. It’s not just about simulations in class-

rooms. It’s about how to move all these things

in a particular way, and how to think about

how it fits into the enterprise of legal educa-

tion and the goals we have for our students.”

ABA President-Elect William C. Hubbard

called for innovators in law and legal educa-

tion to shape the future of justice by creating

more efficient and effective models for the

delivery of legal services. Prominent law schol-

ar William Henderson presented research

indicating that Northeastern’s Cooperative

Legal Education Program (co-op) accelerates

more self-aware and deliberate career planning

by students, enabled by insights they gain dur-

ing nearly a year of full-time legal experience

through the program. NCBA President Alan

Duncan highlighted NCBA programs includ-

ing the Center for Practice Management, pro-

viding two full-time staff devoted to assisting

attorneys with law firm start up, technology,

and practice management questions.

Other highlights included:

• practitioners and teachers in medical,

architectural, and business sectors presented

insights about experiential education compo-

nents in their fields

• law school leaders presented innovative

experiential education programs established

since 2012

• panelists presented research in areas such

as cost and sustainability measures for experi-

ential legal education and the regulatory land-

scape at national and state levels surrounding

pedagogical change in law schools.

Visit the symposium website for details:

law.elon.edu/aell.

North Carolina Central University

School of Law

Wallace to Lead NCCU Dispute

Resolution Institute—NCCU Law Professor

Kathleen Wallace was named director of the

school’s Dispute Resolution Institute (DRI)

beginning July 2014. Wallace takes the reins

from outgoing director Mark Morris.

NCCU has led the state in developing

expertise in the growing field of conflict reso-

lution with the creation of its Alternative

Dispute Resolution (ADR) Clinic in 2000

and the DRI in 2006.

The practice of alternative dispute resolu-

tion seeks to avoid the typical adversarial

approach of litigation in order to better pre-

serve the relationship between those in con-

flict. This is particularly important in cases

involving divorcing parents, family members,

business partners, and neighbors—anyone

who anticipates ongoing interaction.

At NCCU’s Dispute Resolution Institute,

those seeking a certificate complete three core

courses—Negotiation, Mediation, and

Arbitration—and select from among a dozen

others in ADR processes and practice to total

ten credit hours.

One popular elective is the ADR Clinic.

NCCU Law has partnered with the Elna B.

Spaulding Conflict Resolution Center to

mediate cases presented at the center and in

district court in Durham. Each Friday the stu-

dents gain hands-on experience mediating

community disputes, Medicare/Medicaid

appeals, and misdemeanor offences involving

property damage and simple assaults.

According to Wallace, “Our students can

easily parlay these negotiation and conflict

management skills in almost any professional

capacity.”

She should know. Since 2004 Wallace has

also served as a mediator for the US Olympic

Committee. As a crisis intervention specialist

and legal counsel for the US Paralympic

Team, Wallace attended the Paralympic

Games in Sochi, Russia, where she managed

disputes regarding rule interpretation, disqual-

ifications, and athletes’ rights.

Wallace intends to use her tenure as direc-

tor to increase students’ engagement in the

community. “I’d like to see more work with

youth in conflict management and with fam-

ilies in crisis regarding decisions about elder

care,” said Wallace.

University of North Carolina School

of Law

Dean Boger Announces Plan to Return to

Teaching—John Charles “Jack” Boger ’74

announced that he will conclude his role as

dean of the law school in July 2015 to return

to the law school faculty. He will have served

as dean for nine years, and as a member of the

UNC faculty for 25 years. Boger was named

the law school’s 13th dean in 2006 after serv-

ing as deputy director of the UNC Center for

Civil Rights. He holds the Wade Edwards

Distinguished Chair. Boger will continue to

lead the law school until his successor is

named and assumes the leadership role in the

summer of 2015.

New Associate Dean for Student Affairs—

The law school welcomes Paul Rollins to its

staff, starting in August as its new associate

dean for student affairs. Rollins, a native of

South Carolina, received his BA degree from

the University of South Carolina and his JD

degree from Yale Law School. He joins UNC

from UGA’s law school, where he served as

associate dean for administration and student

affairs. In his role at UNC he will oversee the

admissions, student services, and career devel-

opment offices.

Faculty Corporate Law Treatise Quoted by

SCOTUS—In the recently decided Hobby

Lobby case, both the majority and the dissent-

ing opinions of the Supreme Court cited

propositions from Treatise on the Law of

Corporations, a book co-authored by Tom

Hazen, the Cary C. Boshamer Distinguished

Professor of Law at UNC School of Law, and

James Cox, a law professor at Duke. The

Supreme Court previously has cited Hazen’s

work in securities law, but the opinions in the

Hobby Lobby case represent the first time that

both the majority and dissent cited his work

in the same case.

Wake Forest University School of Law

Interim Dean Named—Wake Forest

University School of Law Executive Associate

Dean for Academic Affairs Suzanne Reynolds

(’77) has been named interim dean of the law

school effective September 1, following the

announcement that Dean Blake D. Morant

has accepted an offer to become dean at

George Washington Law School.

Reynolds has served as Wake Forest Law’s

executive associate dean for academic affairs

for the past four years. She is the first woman

to serve as dean of Wake Forest Law.

Needham Yancy Gulley Professor of

Criminal Law Ron Wright, who served as

executive associate dean for academic affairs at

the law school for three years prior to

Reynolds, will step back into his former role.

Both appointments are for the 2014-2015

academic year, according to WFU Provost

Rogan Kersh. A national search for Dean

CONTINUED ON PAGE 51

THE NORTH CAROLINA STATE BAR JOURNAL

James B. Maxwell is a recipient of the John

B. McMillan Distinguished Service Award. A

Virginia native, Mr. Maxwell earned his

undergraduate degree from the Randolph-

Macon College in 1963, and his law degree

from Duke University in 1966. Mr. Maxwell

currently practices at the law firm of Maxwell,

Freeman & Bowman, PA in Durham.

Throughout his distinguished career, Mr.

Maxwell has established himself as an out-

standing attorney, mentor, community ser-

vant, coach, and leader. Among countless

endeavors, Mr. Maxwell was the first lawyer to

serve both as president of the NC Academy of

Trial Lawyers and as president of the North

Carolina Bar Association. In addition, Mr.

Maxwell has coached the Duke University

Law School National Moot Court Team since

2002, has been chair of the Legal Aid Board of

Directors, and chair of the Lawyers Mutual

Claims Committee. He has been listed in the

Best Lawyers in America since 1987. He has

spoken at dozens of CLEs and written numer-

ous articles relating to both litigation and pro-

fessional ethics. A man of character who has

dedicated his life to serving the legal commu-

nity and the public, James B. Maxwell is a

deserving recipient of the John B. McMillan

Distinguished Service Award.

Sharon A. Thompson is a recipient of the

John B. McMillan Distinguished Service

Award. Ms. Thompson began practicing law

in 1976 in Raleigh. In 1979 she became a

member of Thompson & McAllaster, where

she remained until starting the Sharon

Thompson Law Group in 1991. Ms.

Thompson currently concentrates in family

law but has previously practiced in a wide

range of areas. Ms. Thompson served two

terms in the NC House of Representatives

from 1987-1990. She was also an adjunct pro-

fessor at NC Central University Law School.

A pioneer, Ms. Thompson was a cofounder of

the NC Association of Women Attorneys

(NCAWA), and founding member and first

president of the NC Gay and Lesbian

Attorneys (NC GALA). In 1987 Ms.

Thompson was granted the annual award

from the NCAWA for promoting the partici-

pation of women in the legal profession and

the rights of women under the law. She was a

member of the Board of Governors of the NC

Academy of Trial Lawyers, and in 2007 she

was inducted into the NC Bar Association’s

General Practice Hall of Fame. She has spoken

at numerous CLEs and published many arti-

cles focusing on family law issues for LGBT

clients. An excellent lawyer and civil rights

advocate, Sharon A. Thompson is a deserving

recipient of the John B. McMillan

Distinguished Service Award.

M. Gordon Widenhouse is a recipient of

the John B. McMillan Distinguished Service

Award. Mr. Widenhouse received his under-

graduate degree from Davidson College in

1976, his Master of Arts from UNC-

Greensboro in 1978, and his JD from Wake

Forest University Law School in 1982.

Following law school, Mr. Widenhouse

clerked in the United States District Court,

and then for Justice James Exum in the North

Carolina Supreme Court. After a time as an

assistant appellate defender and assistant fed-

eral public defender, Mr. Widenhouse has

focused his career on appellate litigation and

criminal defense with the firm of Rudolf,

Widenhouse & Filako in Chapel Hill. Mr.

Widenhouse has been an adjunct professor at

NC Central University Law School, where he

was awarded a Charles L. Becton Teaching

Award in 2013. In addition to teaching law

students, Mr. Widenhouse has devoted time

to assisting high school students in North

Carolina with a better understanding of the

legal system and the legal profession as one of

the founders of the Wade Edwards High

School Mock Trial Program for the NCAJ.

The award for the best overall competitor at

the competition is named after Mr.

Widenhouse. He has spoken at numerous

CLEs, published numerous articles, and is

considered a mentor to many lawyers. Listed

in NC Super Lawyers since 2007 and Best

Lawyers in America since 2002, Mr.

Widenhouse has had a career of service to the

bar and to the public, and is a deserving recip-

ient of the John B. McMillan Distinguished

Service Award.

Seeking Award Nominations

The John B. McMillan Distinguished

Service Award honors current and retired

members of the North Carolina State Bar who

have demonstrated exemplary service to the

legal profession. Awards will be presented in

recipients’ districts, with the State Bar coun-

cilor from the recipient’s district introducing

the recipient and presenting the certificate.

Recipients will also be recognized in the

Journal and honored at the State Bar’s annual

meeting in Raleigh.

Members of the bar are encouraged to

nominate colleagues who have demonstrated

outstanding service to the profession. The

nomination form is available on the State Bar’s

website, ncbar.gov. Please direct questions to

Peter Bolac, PBolac@ncbar.gov n

John B. McMillan Distinguished Service Award

BAR UPDATES

Law School Briefs (cont.)

Morant’s successor will begin in September.

Reynolds is widely respected for her schol-

arship and teaching about family law, and for

her public service. She was a principal drafter

of statutes that modernized the law of both

alimony and of adoption, and she co-founded

a domestic violence program that received

national recognition by the American Bar.

Reynolds authored a three-volume treatise on

North Carolina family law that has become

the authoritative source for law students,

lawyers, and judges.

Wright is one of the nation’s best known

criminal justice scholars. He is the co-author of

two casebooks in criminal procedure and sen-

tencing; his empirical research concentrates on

the work of criminal prosecutors. He is a board

member of the Prosecution and Racial Justice

Project of the Vera Institute of Justice, and has

been an adviser or board member for Families

Against Mandatory Minimum Sentences

(FAMM), North Carolina Prisoner Legal

Services, Inc., and the Winston-Salem

Citizens’ Police Review Board. Prior to joining

the faculty, he was a trial attorney with the US

Department of Justice. n

FALL 2014

At its July 24, 2014, meeting, the North

Carolina State Bar Client Security Fund

Board of Trustees approved payments of

$250,137.86 to 11 applicants who suffered

financial losses due to the misconduct of

North Carolina lawyers.

The payments authorized were:

1. An award of $22,880.95 to a former

client of William S. Britt of Lumberton.

The board determined that Britt was

retained to handle a negligence claim

against a nursing home that resulted in the

client's husband's death and personal

injury claims for the client and her two

sons. Britt settled the matters and deposit-

ed the settlement proceeds into his trust

account, but failed to disburse some of the

funds prior to his trust account being

frozen by the State Bar. Due to misappro-

priation, Britt’s trust account balance is

insufficient to cover all of his clients’ obli-

gations. Although Britt had deposited

funds in his lawyer's trust account to cover

the expected shortage, he agreed that his

client should be reimbursed by the board

and be subrogated to the funds in his

lawyer's trust account. Britt was disbarred

on June 12, 2014.

2. An award of $72,576.08 to two for-

mer clients of Sue E. Mako of

Wilmington. The board determined that

Mako was retained to handle the clients’

personal injury claims. Mako settled the

matters and deposited the settlement pro-

ceeds into her trust account. At the time of

the deposits, Mako knew that her trust

account was short due to an unrelated

scam. Mako failed to make any disburse-

ments from the proceeds for the benefit of

the clients prior to the State Bar freezing

Mako’s trust account. Due to the shortage

in her account caused by Mako’s disburse-

ment against uncollected funds related to

the scam, and her dishonest act of failing

to return missing funds to the trust

account from money she earned after the

scam, Mako’s trust account balance is

insufficient to cover all her clients’ obliga-

tions. Mako’s disbarment will be effective

on August 20, 2014.

3. An award of $3,366.53 to a former

client of Nicholas A. Stratas of Raleigh.

The board determined that Stratas was

retained to handle a client’s personal injury

claim. Stratas settled the matter and

retained a portion of the settlement pro-

ceeds to resolve a subrogation lien. Stratas

failed to resolve the lien prior to being dis-

barred. Due to misappropriation, Stratas’

trust account balance was insufficient to

pay all his clients’ obligations. Stratas was

disbarred on February 1, 2013. The board

previously reimbursed ten other Stratas

clients a total of $152,215.78.

4. An award of $11,696.10 to a former

client of Daniel L. Taylor of Troutman. The

board determined that Taylor was retained

to prepare estate planning documents for a

client’s father. Taylor suffered a stroke

shortly after meeting with the client and

prior to the client signing a “nonrefund-

able” fee agreement and paying the legal

fee. Taylor failed to provide any valuable

legal services for the fee paid. Taylor died

on December 25, 2013.

5. An award of $11,746.10 to a former

client of Daniel L. Taylor. The board deter-

mined that Taylor was retained to prepare

estate planning documents and provide

asset protection services for the client and

his wife. The client signed two “nonrefund-

able” fee agreements and paid the com-

bined fee in full because time was of the

essence to get his wife’s assets protected due

to her declining health. Despite being paid

and having all the necessary information to

prepare the documents, Taylor failed to

produce any documents for the client’s wife

prior to her death. Taylor failed to provide

any valuable legal services for the fees paid.

6. An award of $5,000 to former clients

of Daniel L. Taylor. The board determined

that Taylor was retained to handle the

client’s son’s petition for a contested case

hearing before the Office of Administrative

Hearings (OAH). Taylor faxed the client's

handwritten petition, rather than one he

was retained to prepare, to OAH a day after

the filing deadline. Taylor failed to provide

any valuable legal service for the clients.

7. An award of $6,000 to a former client

of Daniel L. Taylor. The board determined

that Taylor was retained to prepare estate

planning documents and represent a client

in a petition for guardianship over her hus-

band. The client signed Taylor’s “nonre-

fundable” fee agreement and paid the fees

for the estate planning documents and rep-

resentation in the guardianship proceeding.

After preparing the estate planning docu-

ments, filing the guardianship petition, and

participating in the guardianship proceed-

ing, Taylor requested an additional $6,000

fee to complete the guardianship. The

client paid the additional fee, but Taylor

failed to complete the guardianship. Taylor

failed to provide any valuable legal services

for the additional fee paid.

8. An award of $11,696.10 to a former

client of Daniel L. Taylor. The board deter-

mined that Taylor was retained to apply for

Medicaid benefits and provide asset plan-

ning services for the client’s father. The

client signed a “nonrefundable” retainer

agreement and paid the fees quoted. Taylor

never prepared any estate planning docu-

ments and failed to provide any other valu-

able legal services for the fee paid.

9. An award of $3,500 to a former client

of Clyde Gary Triggs of Hildebran. The

board determined that Triggs was retained

to handle a client’s domestic matter. Triggs

failed to provide any valuable legal services

to the client prior to being disbarred. Triggs

was disbarred on January 31, 2013.

10. An award of $1,266 to a former

client of David A. Vesel of Raleigh. The

board determined that Vesel was retained

to handle a client’s real estate closing. Vesel

failed to deliver two disbursement checks

on the client’s behalf prior to his trust

account being frozen by the State Bar. Due

to misappropriation, Vesel’s trust account

balance was insufficient to pay all his

clients’ obligations. Vesel was disbarred on

July 5, 2013. The board previously paid

one other Vesel client a total of $5,914.

BAR UPDATES

Client Security Fund Reimburses Victims

Charlotte attorney

Mark Merritt was

selected by the State

Bar's Nominating

Committee to stand

for election to the

office of vice-presi-

dent of the North

Carolina State Bar.

The election will take

place in October at

the State Bar's annual meeting.

Merritt is a graduate of the University of

North Carolina where he was a Morehead

Scholar and a member of Phi Beta Kappa.

He earned his law degree in 1982 from the

University of Virginia and served as editor

in chief of the Virginia Law Review. After

law school he clerked on the Fifth Circuit

Court of Appeals for Judge John M.

Wisdom. He returned to Charlotte and has

practiced law at Robinson Bradshaw &

Hinson since 1983.

His professional activities include serving

as treasurer and president of the

Mecklenburg County Bar, serving on the

Board of Directors and as president of Legal

Services of Southern Piedmont, and serving

as chair of the North Carolina Bar

Association Antitrust Section Counsel.

While a State Bar councilor he has served as

chair of the Ethics Committee and of the

Lawyers Assistance Program. He has served

as a member of the Facilities, Grievance,

Issues, and Authorized Practice Committees.

He also served as chair of the Special

Committee on Ethics 2020.

Mark is a member of the American

College of Trial Lawyers and the International

Society of Barristers.

He is married to Lindsay Merritt and has

three children, Alex, Elizabeth, and Jay. n

THE NORTH CAROLINA STATE BAR JOURNAL

Living with Blindness

(cont.)

a multi-national, multi-racial family. We did

not have any ties to Ethiopia, but we both

had friends and experiences that drew us to

Africa, generally. We also had friends who

went through the Ethiopian adoption

process before us, so that encouraged us to

go that route. Thus, in May of 2012 we

brought home our daughter Kalkidan (then

age four) and our son Rebuma (then 18

months old).

Fatherhood has been a blast. My children

really help to keep me humble. They don’t

care where I work or who I represent, but are

just impressed that I have a job where there

is a candy dish and a soda fountain and

where I get to talk on a phone that actually

has a cord, as opposed to the ubiquitous

smart phones that are all they’ve ever known.

Coming home to fans who don’t keep track

of wins and losses or count billable hours is

the best part of every day.

I will say that fatherhood is one of the

few areas where I’ve found blindness to be

frustrating. There are things I’d like to be

able to do as a dad—see my son’s goofy facial

expressions, watch my daughter dance and

play soccer, or play catch—that I can’t do,

and not being able to do things isn’t some-

thing I am very accustomed to. I guess I am

still learning what it means to be blind in a

new stage of life.

JG: In describing your disability, you used

the phrase that sight for you is like “looking

at an elephant from six inches away”. In

many ways, this describes some sighted per-

sons and how they pass their lives with blind-

ers on. How have you handled the elephant?

JD: That is a lesson I am still learning.

Like most people, I sometimes struggle to

see what really matters beyond the court

deadlines, case outcomes, and career goals

that require so much daily energy. As I men-

tioned before, though, living with blindness

has given me a broader perspective about the

inter-connectedness of people and the

importance of relationships. That perspec-

tive has not always made me a more san-

guine or compassionate person, but, as I’ve

grown up, started a family and a career, I

have been able to see and appreciate just

how many people contributed to getting me

to where I am in life: a dad who encouraged

me to work hard and compete; a mom who,

many nights, came home from work only to

spend several hours reading textbooks to me

when my high-school couldn’t provide them

in accessible formats; teachers and coaches

who worked creatively to teach me their

subjects and sports; friends who rowed and

trained with me to prepare me for the

Paralympics, though there was no potential

for personal glory for them; colleagues who

took the risk of hiring a blind person and

who provide the support needed to enable

me to do my job; and a wife and kids who

love and encourage me without regard to

personal or professional successes.

Understanding how much I have benefited

from the generosity of other people inspires

both confidence and humility, and for me

has been the best medicine against the self-

absorption that can be so alluring. n

John Gehring, a former State Bar councilor

and chair of the Publications Committee, is

now semi-retired, which means that he “works

less and enjoys it more.”

11. An award of $100,000 to a former

client of W. Darrell Whitley of Lexington.

The board determined that Whitley was

retained to create and administer a trust for

a client. Within two weeks of the client’s

funds being deposited into his trust

account, Whitley misappropriated virtually

all of the funds. Due to misappropriation,

Whitley’s trust account was insufficient to

pay all of his clients’ obligations. Whitley

died on December 6, 2011. The board pre-

viously reimbursed several other Whitley

clients and applicants a total of

$664,096.74. n

Merritt Nominated as Vice-President

The North Carolina State Bar

2013 2012

Assets

Cash and cash

equivalents $6,548,412 $7,156,681

Property and

equipment, net 17,691,016 13,791,676

Other assets 329,470

300,252

$24,568,898 $21,248,609

Liabilities and Fund Equity

Current liabilities $4,843,760 $4,754,581

Long-term debt 11,545,979 8,613,737

16,389,739 13,368,318

Fund equity-

retained earnings 8,179,159 7,880,291

$24,568,898 $21,248,609

Revenues and Expenses

Dues $7,631,961 $7,399,734

Other operating

revenues 909,935 753,104

Total operating

revenues 8,541,896 8,152,838

Operating expenses (8,027,353) (7,166,301)

Non-operating

revenues (30,175) 837,569

Net income $484,368 $1,824,106

The NC State Bar Plan for Interest on

Lawyers' Trust Accounts (IOLTA)

2013 2012

Assets

Cash and cash

equivalents $2,971,291 $3,191,810

Interest receivable 223,659 234,406

Other assets 216,498

199,541

$3,411,448 $3,625,757

Liabilities and Fund Equity

Grants approved

but unpaid $2,330,755 $2,345,755

Other liabilities 239,932 226,949

2,570,687 2,572,704

Fund equity-

retained earnings 840,761 1,053,053

$3,411,448 $3,625,757

Revenues and Expenses

Interest from IOLTA

participants, net $1,812,929 $1,990,393

Other operating

revenues 657,282 1,286,473

Total operating

revenues 2,470,211 3,276,866

Operating expenses (2,691,021) (2,711,263)

Non-operating revenues 8,518 9,568

Net income (loss) $(212,292) $575,171

Board of Client Security Fund

2013 2012

Assets

Cash and cash

equivalents $1,390,739 $1,668,369

Other assets (790)

(446)

$1,389,949 $1,667,923

Liabilities and Fund Equity

Current liabilities $20,269 $17,662

Fund equity-

retained earnings 1,370,018 1,650,261

$1,390,287 $1,667,923

Revenues and Expenses

Operating revenues $728,173 $741,424

Operating expenses (1,009,786) (783,750)

Non-operating revenues 1,370 3,098

Net loss $(280,243) $(39,228)

Board of Continuing Legal Education

2013 2012

Assets

Cash and cash

equivalents $287,066 $243,708

Other assets 173,802

191,853

$460,868 $435,561

Liabilities and Fund Equity

Current liabilities 116,822 69,520

Fund equity-

retained earnings 344,046 366,041

$460,868 $435,561

Revenues and Expenses

Operating revenues $664,397 $646,041

Operating expenses (686,423) (652,845)

Non-operating revenues 31 (400)

Net loss $(21,995) $(7,204)

Board of Legal Specialization

2013 2012

Assets

Cash and cash

equivalents $191,899 $180,394

Other assets -

728

$191,899 $181,122

Liabilities and Fund Equity

Current liabilities 15,059 8,162

Fund equity-

retained earnings 176,840 172,960

$191,899 $181,122

Revenues and Expenses

Operating revenues-

specialization fees $136,050 $134,018

Operating expenses (132,164) (129,244)

Non-operating revenues (6) 89

Net income $3,880 $4,863

The Chief Justice's Commission on

Professionalism

2013 2012

Assets

Cash and cash

equivalents $221,068 $196,053

Other assets 100,762

100,527

$321,830 $296,580

Liabilities and Fund Equity

Current liabilities 522 90

Fund equity-

retained earnings 321,308 296,490

$321,830 $296,580

Revenues and Expenses

Operating

revenues-fees $327,547 $328,321

Operating expenses (302,761) (292,266)

Non-operating revenues 32 63

Net income $24,818 $36,118

Board of Paralegal Certification

2013 2012

Assets

Cash and cash

equivalents $402,611 $348,099

Other assets 7,050

$409,661 $348,099

Liabilities and Fund Equity

Current liabilities -

accounts payable 7,275 7,193

Fund equity-

retained earnings 402,386 340,906

$409,661 $348,099

Revenues and Expenses

Operating

revenues-fees $245,575 $257,130

Operating expenses (184,083) (205,688)

Non-operating revenues (12) 155

Net income (loss) $61,480 $51,597

FALL 2014

The North Carolina State Bar and Affiliated Entities

Selected Financial Data

The North Carolina State Bar

PO Box 25908

Raleigh, NC 27611

Fall 2014