journal 19,3_Layout 1 - North Carolina State Bar

THE NORTH CAROLINA STATE BAR

JOURNAL

IN THIS ISSUE

Life After Meth page 8Washington State LLLT Program page 16

Seven Room Barn page 24

FALL

2014

FREE l SAFE l CONFIDENTIAL

Western RegionCathy Killian 704.910.2310

Piedmont RegionTowanda Garner 919.719.9290

Eastern Region919.719.9267

You are not alone. Free, confidentialassistance is available.

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

Contact us today. [email protected]

www.NCLAP.org

Hanging on bya thread?

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

THENORTH CAROLINA

STATE BAR

JOURNALFall 2014

Volume 19, Number 3

EditorJennifer R. Duncan

Publications CommitteeG. Gray Wilson, Chair

Dorothy Bernholz, Vice-ChairHarry B. Crow

Margaret H. DicksonRebecca Eggers-Gryder

Forrest A. FerrellDouglas R. GillJames W. HallAnna HamrickCharles Hardee

Darrin D. JordanSonya C. McGraw

Robert MontgomeryNancy Black NorelliHarold (Butch) PopeBarbara B. Weyher

Alan D. Woodlief Jr.

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

www.ncbar.gov

F E A T U R E S

8 Life After Meth—A Journey of Addiction and RecoveryBy Douglas Wilson “Wil” Miller

13 Informing the Public in Upcoming Judicial ElectionsBy Ashley M. London

14 If it Feels Like Technology is Moving Faster, It’s Not Just YouBy Erik Mazzone

16 Washington State LLLT Program: Improving Access to JusticeBy Thea Jennings

18 The Bottom Line—Legal Servicesis a Good InvestmentBy Mary Irvine

20 “Living with Blindness has Given Me a Broader Perspective...”—An Interview with Attorney Jamie DeanBy John Gehring

24 Seven Room BarnBy P. Richard Wilkinson

27 Poetic JusticeBy James DuPuy and ML Philpott

Cover photo courtesy of Lara M. Wilson Photography.

3THE NORTH CAROLINA STATE BAR JOURNAL

D E P A R T M E N T S

5 President’s Message

28 Profile in Specialization

29 Resolution of Appreciation

30 Lawyer Assistance Program

32 Paralegal Certification

33 IOLTA Update

34 The Disciplinary Department

36 Trust Accounting

38 Rule Amendments

41 Proposed Ethics Opinions

46 Legal Ethics

B A R U P D A T E S

40 In Memoriam

49 Law School Briefs

51 Distinguished Service Award

52 Client Security Fund

53 Merritt Nominated as VP

54 Selected Financial Data

OfficersRonald G. Baker Sr., Kitty Hawk - President 2013-2014Ronald L. Gibson, Charlotte - President-Elect 2013-2014Margaret M. Hunt, Brevard - Vice-President 2013-2014L. Thomas Lunsford II, Raleigh - Secretary-TreasurerM. Keith Kapp, Raleigh - Past-President 2013-2014

CouncilorsBy Judicial District1: C. Everett Thompson, Elizabeth City2: G. Thomas Davis Jr., Swan Quarter3A: Charles R. Hardee, Greenville3B: Debra L. Massie, Beaufort4: Robert W. Detwiler, Jacksonville5: Harold L. Pollock, Burgaw6A: Gilbert W. Chichester, Roanoke Rapids6B: Lloyd C. Smith Jr., Windsor7: Randall B. Pridgen, Rocky Mount8: Shelby D. Benton, Goldsboro9: Paul J. Stainback, Henderson9A: Alan S. Hicks, Roxboro10: Heidi C. Bloom, Raleigh

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

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

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

Robert C. Cone, Greensboro18H: Richard S. Towers, High Point19A: James D. Foster, Concord19B: W. Edward Bunch, Asheboro19C: Darrin D. Jordan, Salisbury19D: Douglas R. Gill, Southern Pines20A: Frederick D. Poisson Jr., Wadesboro20B: Harry B. Crow Jr., Monroe21: Michael L Robinson, Winston-Salem

G. Gray Wilson, Winston-Salem22: Kimberly S. Taylor, Taylorsville22B: Roger S. Tripp, Lexington23: John S. Willardson, Wilkesboro

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

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

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

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

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

Katherine Jean, Counsel and Assistant Executive Dir.David R. Johnson, Deputy CounselSharon Kelly, Events ManagerBarbara Kerr, ArchivistCathy D. Killian, Clinical Director, LAPMelanie Kincaid, ParalegalSuzanne Lever, Asst. Ethics CounselL. Thomas Lunsford II, Executive DirectorAdam Maner, Professional Organization CoordinatorBeth McIntire, IT ManagerBeth McLamb, Payment Coordinator, MembershipNichole P. McLaughlin, Asst. Ethics CounselBarry S. McNeill, Deputy CounselDiane Melching, Admin. Asst., ACAPDottie K. Miani, Deputy Clerk of DHC/Asst. Facilities ManagerClaire U. Mills, Accounts Manager, IOLTAAlice Neece Mine, Asst. Executive Dir., Dir. of CLE,Specialization, & Paralegal CertificationRobynn E. Moraites, LAP DirectorGeorge Muench, InvestigatorDenise Mullen, Asst. Director of SpecializationPat Murphy, Deputy CounselLoriann Nicolicchia, Accreditation Coordinator, CLEEmily Oakes, Attendance/Compliance Coordinator, CLEBrian Oten, Deputy CounselLisanne Palacios, Accounting ManagerAnne M. Parkin, Field AuditorHeather Pattle, Administrator, Office of CounselC. Fred Patton Jr., InvestigatorWondella Payne, ParalegalAaliyah Pierce, Acct. Data Asst., IOLTAAngel Pitts, Mail/Copy/Accounting ClerkJennifer Porter, Deputy Counsel Evelyn Pursley, Executive Dir., IOLTASonja B. Puryear, Admin. Asst., InvestigationsJoan Renken, Admin. Asst., Office of CounselRandall C. Ross, InvestigatorWhit Ruark, InvestigatorSandra L. Saxton, Public Liaison, ACAPFern Gunn Simeon, Deputy CounselJaya Singh, Accounting Asst.Jennifer Slattery, ParalegalSusie Taylor, Admin. Asst./Special Projects Manager, LAPJudith Treadwell, Public Liaison, ACAPKristina M. Troskey, ParalegalWayne C. Truax, InvestigatorJoshua T. Walthall, Deputy CounselA. Dawn Whaley, Admin. Asst., InvestigationsEdward R. White, InvestigatorBrittany A. Wilson, ParalegalMary D. Winstead, Deputy CounselChristiane Woods, Admin Asst., Investigations

FALL 20144

Prior to June 25 of this year, serving as thepresident of the North Carolina State Bar hadbeen both enjoyable and relatively pain freeexcept for the amount of time involved. All ofthat changed, however, at 5:30 PM that daywhen I received a phone call from State BarExecutive Director Tom Lunsford. Duringthat phone call, Tom advised me that he hadjust received information froma state senator that House Bill663 entitled “CommoditiesProducer Protection,” whichhad crossed over to the Senateback in May 2013, had beenstripped of its agricultural con-tent and amended to substan-tially alter the definition of thepractice of law. The purpose ofthat amendment was clearly toput a legislative stamp ofapproval on LegalZoom’smethod of operation in NorthCarolina and other places. As I mentioned inmy first column after becoming president,among other lawsuits the State Bar is involvedin, one is a suit brought by LegalZoom whichinvolves, among other issues, the question ofwhether its activities in North Carolina consti-tute the unauthorized practice of law. Welearned that HB 663 was to come before theSenate’s Judiciary 1 Committee at 10:00 AMthe following (June 26) morning.

Knowing that the State Bar should be rep-resented at the meeting of the JudiciaryCommittee, the chair of the AuthorizedPractice Committee, Mike Robinson, wascalled around 7:00 PM on the evening of the25th. Without hesitating, Mike graciouslyrearranged his schedule and promised to cometo Raleigh and appear at the meeting of SenateJudiciary Committee 1 to state the position ofthe State Bar—that the language of the pro-posed amendment to the definition of thepractice of law was entirely too broad andshould not be passed. Mike appeared at thecommittee meeting and expressed the StateBar’s position magnificently. Mr. Robinson

told the committee that the State Bar’s interestand responsibility in the matter is consumerprotection, and that the amendment wouldlikely have serious unintended consequencesand should not be the subject of precipitouslegislative action. Unfortunately, the amendedbill was voted out of the committee with afavorable report. At that point it appeared that

the matter would comebefore the entire Senate with afavorable report of SenateJudiciary Committee 1 on thefollowing Tuesday. Had theSenate adopted HB 663 itwould have then returned tothe House, where all thatwould have been needed wasconcurrence for the amendedbill to be enacted.

Following the meeting ofSenate Judiciary 1, past StateBar President John McMillan

along with his partner, Michelle Frazier, vol-unteered to help the State Bar figure out howto effectively oppose LegalZoom in the legis-lature. The first two things that I did as yourpresident were to write all of the members ofthe State Bar Council and all past presidentsof the State Bar to advise them of the amend-ment to HB 663 and its likely consequences,and to request their assistance in contactingsenators and legislators in an attempt tothwart passage of the bill. I also called SenatePresident Pro Tem Phil Berger to discuss thematter 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 notbeen on Senator Berger’s radar, and he wasnot aware of its pendency until we spoke withhim. He promised to look into the matterand also requested that the State Bar come upwith proposed alternate language for the billthat would be acceptable to the State Bar.Throughout the ensuing days Senator Bergerwas very responsive to the concerns of theState Bar.

Councilors, former State Bar presidents,and lawyers all over the state began callingtheir senators and representatives, and all ofthose calls had an effect. The bill was removedfrom the July 1 Senate calendar and postponeduntil a later time. Ultimately it was sent to theSenate Rules Committee.

All of this activity in the legislature was tak-ing place against the backdrop of many otherfactors. As noted above, one was theLegalZoom litigation. The judge assigned tothe case had stated to the parties on more thanone occasion that ultimately it was the chargeof the State Bar to regulate the practice of lawin North Carolina, and that it should exerciseits authority to come to some resolution in thematter. Of course, the court made very clearthat if the State Bar could not resolve the mat-ter, then the court would have to do so.Another complicating factor to the situationthat had to be taken into account was theFederal Trade Commission’s action against theNorth Carolina Dental Board when thatboard attempted to prevent nonlicensed indi-viduals from performing teeth whitening serv-ices. Its efforts in doing so seem to be clearlywithin the purview of the statutory authoritygranted to it by the legislature. Yet the FederalTrade Commission determined its activities tobe anticompetitive and improper, and evenruled that the members of the Dental Boardmight be subject to personal liability forantitrust violations. The State Bar, of course,also had its own experience with the FederalTrade Commission in dealing with activitiessurrounding real estate closings back in 2002,and again in 2010-2011 when the matter wasrevisited by the State Bar. Last, but not least, itwas recognized that the chances ofLegalZoom and similar providers beingordered to cease operation in this state werevirtually nil.

In light of all of the foregoing, the officers,the Special Litigation Committee of the StateBar, and the chair and vice-chair of theAuthorized Practice Committee felt that it wasnecessary and appropriate that an effort be

THE NORTH CAROLINA STATE BAR JOURNAL 5

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

The Fun Comes to a HaltB Y R O N A L D G . B A K E R S R .

FALL 20146

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 afoulof federal antitrust law. Such a suggested alter-native was drafted by the Office of Counsel ofthe State Bar and considered by the Officersand Councilors just mentioned. The languagewas thoroughly vetted and ultimatelyapproved. It was submitted to representativesof LegalZoom. Various counter proposalswere received from LegalZoom, none ofwhich were acceptable to the State Bar.Ultimately, LegalZoom’s representatives wereadvised that the language that the State Barhad proposed was final and the State Bar wasnot prepared to agree to anything else.Following that, a conference was held betweenState Bar officials and LegalZoom’s representa-tives along with LegalZoom’s corporate gener-al counsel for the purposes of explaining thelanguage and the State Bar’s reasoning withrespect to it. Ultimately, LegalZoom agreed toaccept the State Bar’s language with two veryminor clarifications, which merely betterexplained the State Bar’s intention than thewords that had been used. In doing so,LegalZoom agreed to support the substitutelanguage before the legislature, and also agreedto settle the pending lawsuit by agreeing toconform its business practices to the new pro-posed statutory language. That informationwas communicated both to the members ofthe House and Senate and to various bargroups around the state. A copy of the finallanguage of the proposed alternate bill fromthe State Bar appears at the end of this col-umn. Ultimately, the substitute language wasnever introduced and the State Bar wasadvised that no action would be forthcomingfrom the legislature during this session withrespect to the proposed amendments toChapter 84 of the General Statutes. Thus, atpresent, matters remain status quo.

The vast majority of comments that theState Bar has received concerning its proposedsubstitute language to the LegalZoom legisla-tion proposal have been favorable. Thenotable exception has been the commentsfrom the real estate bar, particularly that por-tion that deals with residential real estate clos-ings. That group has been rather vocal in itscriticism of the State Bar’s proposed alternatebill language, and they have accused the StateBar of “caving in” to LegalZoom, of lackingintestinal fortitude (to put things in languagethat is printable in a publication of general dis-

tribution), and of having characteristics thatwould serve no purpose to repeat here. Whilethe concerns of the real estate bar are under-standable, and largely well-founded, the StateBar has to deal with realities. First, LegalZoomhas not been enjoined from doing business inany other state in the United States. In fact, itwas represented to the legislature by represen-tatives of LegalZoom that their operationshave been approved in 49 states and thatNorth Carolina is the lone holdout. Ofcourse, this is not entirely true, but, as notedabove, LegalZoom has not been enjoinedfrom doing business anywhere else and is notlikely to be enjoined from doing business inNorth Carolina. Second, there is a recognizedscrivener’s exception to the definition of thepractice of law that has been recognized bycourts all over the United States, specificallyby the business court in the case of the NorthCarolina State Bar v. LienGuard, Inc. and JanisLundquist, 2014 NCBC 11. It is clearly legalto sell legal forms in this state and the courtseemed to recognize in the LienGuard deci-sion that should LienGuard simply present itsclients with a “fill in the blanks” form andpopulate the form with client-supplied infor-mation without any change or further manip-ulation, their method of operation wouldprobably be legal. This is precisely what theState Bar has tried to mandate in the proposedstatutory language. Some have urged the StateBar to adopt the settlement that LegalZoomentered into in South Carolina. It is the viewof the State Bar that the language proposed inNorth Carolina is more restrictive than thatapproved by the South Carolina SupremeCourt. It is noteworthy that the SouthCarolina ruling was not the result of a trial,but merely the approval of a settlement thatwas negotiated between private parties andLegalZoom, and that LegalZoom paid$500,000 in attorney’s fees to the private liti-gants. There is no question that the NorthCarolina State Bar will never be able to stopproviders from making legal forms availableon the internet. The best that the State Bar canhope to do is regulate the practices to thegreatest extent possible for the protection ofthe consuming public. That is what has beenattempted by the proposed language. It isunderstood that the proposed language willnot suit everyone, and that reasonable mindscan differ as to whether this is the proper wayto go. However, under all of the constraintsthat had to be considered, it was felt by theleadership, the Office of Counsel, and the

North Carolina State Bar Council that thiswas 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 theNorth Carolina Bar Association and its lobby-ist Kim Crouch in their efforts with respect tothis legislation. The same is true of theAdvocates for Justice and its president, DannyGlover. The cooperation of the Republicanleadership in the Senate and the lawyer repre-sentatives in the House is also appreciated.Finally, there are really not words sufficient torecognize the great debt the State Bar owes toPast President John McMillan and his partnerMichelle Frazier for their efforts on behalf ofthe State Bar and the lawyers of NorthCarolina in opposing the original amendment.They have spent countless volunteer hours onour behalf. Without them, it is hard to predictwhere we might be now.

On June 25 being president of the StateBar went from being enjoyable to challengingand difficult. It, however, remained rewarding.This being my last column as president, Iwould be remiss if I did not recognize andexpress my thanks for the dedicated effort ofall 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 suchservice is. Finally, I want to thank the lawyersof North Carolina for affording me the oppor-tunity to serve as president of the NorthCarolina State Bar. Certainly when I startedpracticing law 39 years ago I would never havepredicted that I would ever even be a State Barcouncilor, much less the president of theNorth Carolina State Bar. I am deeply hon-ored to have had the opportunity to serve.Thank you.

Proposed Amendment that would Except theFollowing from the Definition of the Practiceof Law

(2) The production, distribution, or sale ofmaterials, provided that:

(a) The production of the materials musthave occurred entirely before any contactbetween the provider and the consumer; (b) During and after initial contactbetween the provider and the consumer,the provider’s participation in creating orcompleting any materials must be limitedto typing, writing, or reproducing exactlythe information provided by the consumeras dictated by the consumer or deleting

content that is visible to the consumer atthe instruction of the consumer; (c) The provider does not select or assist inthe selection of the product for the con-sumer; provided, however, (i) operating awebsite that requires the consumer to selectthe product to be purchased, (ii) publish-ing descriptions of the products offered,when not done to address the consumer’sparticular legal situation and when theproducts offered and the descriptions pub-lished to every consumer are identical, and(iii) publishing general information aboutthe law, when not done to address the con-sumer’s particular legal situation and whenthe general information published to everyconsumer is identical, does not constituteassistance in selection of the product;(d) The provider does not provide any indi-vidualized legal advice to or exercise anylegal judgment for the consumer; provid-ed, however, that publishing general infor-mation about the law and describing theproducts offered, when not done to addressthe consumer’s particular legal situationand when the general information pub-

lished to every consumer is identical, doesnot constitute legal advice or the exercise oflegal judgment;(e) During and after initial contact betweenthe provider and the consumer, theprovider may not participate in any way inselecting the content of the finished mate-rials; (f) In the case of the sale of materialsincluding information supplied by theconsumer through an internet website orotherwise, the consumer is provided ameans to see the blank template or thefinal, completed product before finalizing apurchase of that product; (g) The provider does not review the con-sumer’s final product for errors other thannotifying the consumer (i) of spellingerrors, (ii) that a required field has not beencompleted, and (iii) that informationentered into a form or template by the con-sumer is factually inconsistent with otherinformation 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 theadvice or services of an attorney; (i) The provider discloses its legal name andphysical location and address to the con-sumer; (j) The provider does not disclaim any war-ranties or liability and does not limit therecovery of damages or other remedies bythe consumer; and (k) The provider does not require the con-sumer to agree to jurisdiction or venue inany state other than North Carolina for theresolution of disputes between the providerand the consumer.For purposes of this subsection, “produc-

tion” shall mean design, creation, publication,or display, including by means of an internetwebsite; “materials” shall mean legal writtenmaterials, 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 theKitty Hawk firm of Sharp, Michael, Graham &Baker LLP.


8 FALL 2014

I didn’t know a lot about meth the firsttime I tried it. It wasn’t a common drugwhere I was from. I knew it was a stimulantand I knew it was illegal. And although Ihad been employed as a prosecutor in NewYork City and Seattle for the preceding nineyears, I had always been a vocal opponent ofthe “War on Drugs” and refused to handledrug cases because of it. That left a danger-ous void in my knowledge of meth.

From the very first time I tried meth, Iloved it. Nothing had ever made me feel ashappy or alive or confident as meth did.That’s because no natural experience canmake your brain produce dopamine likemeth can. Dopamine is a neurotransmitterthat makes you experience pleasure.Normally there are about 100 units ofdopamine in the pleasure centers of yourbrain; when you have sex, those levels dou-ble up to around 200 units. Cocaine canmake your dopamine levels go up to 350units and keep them there for over an hour.That’s why cocaine is so addictive. Butwhen you use meth, your dopamine levelsshoot up to 1,250 units and you stay highfor up to 12 hours. At the same time yourdopamine levels are spiking, meth is alsoreducing blood flow to your frontal lobes,hobbling that section of your brain thathelps you make good and responsible deci-sions. It’s a dangerous combination—a per-fect storm of addiction.

Barreling Towards AddictionBy 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 quicklysnowballed into extended periods of use fol-lowed by debilitating periods of withdrawal.Meth withdrawal can leave you feelingimpossibly weak, apathetic, and depressed,sometimes for days. You eat and sleepuncontrollably and sometimes experiencecrying jags or bouts of paranoia for no rea-son. It can make you feel like you’re losingyour mind.

By December 1997 I couldn’t take itanymore. I became an addicted, daily sub-stance user just to avoid withdrawal.Suddenly, for the first time in my career, Istarted showing up late to work. I couldn’tstay organized anymore. I was losing my

temper for no reason and being really rudeto some of the defense attorneys.

Many people believe it’s easy to figureout when someone is using meth by theirviolent or erratic behavior, but that’s amyth. Like any drug, individual responsesto meth vary widely. Just as some alcoholicscan maintain the appearance of sobrietywith relatively high blood-alcohol levels,many meth addicts can do the same withmeth. In many ways, my meth-influencedbehavior was not unlike the behavior ofmany trial attorneys who are short-tem-pered and stressed out, and for the mostpart it went unnoticed.

Being a prosecutor certainly made my

Photo courtesy of Lara M. W

ilson 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 ofAddiction and Recovery

B Y D O U G L A S W I L S O N “ W I L ” M I L L E R

addiction much more complicated. I wasoverwhelmed with feelings of guilt andhypocrisy. And although I knew I desper-ately needed help, I had no idea where Icould get it without losing my job.

And I really didn’t want to lose my job. Iloved being a trial attorney and a victims’advocate. After graduating from Duke Lawin 1988, I started my career in the BrooklynDA’s Office, where I focused on prosecutingsex crimes. Three years later, I took a job asa trial attorney and supervisor in the SpecialVictims Bureau in the Queens DA’s Office.Then in 1995 I moved to Seattle to workfor Norm Maleng as a King County deputyprosecutor.

Being a prosecutor was all I had everdone. I was also really good at it. In nineyears of trying cases back-to-back, I rarelylost. Trial work felt completely natural tome —like the thing I was born to do.

Caught at the CourthouseThat all ended one day in March 1998,

three months into my addiction, when asecurity guard at the King CountyCourthouse asked me to open my briefcase,which had just gone through the x-raymachine. It was a common request; I fre-quently had my briefcase searched whenentering the courthouse. Only this time,inside there was an Altoids tin containingdrugs and drug paraphernalia—I recog-nized the Altoids tin. It belonged to me andmy significant other. But I had no idea whyit was in my briefcase, where it would soobviously be found by security.

In an instant, I saw my life crumblebefore my eyes. I was about to lose every-thing: my job, my friends, and my reputa-tion. I denied the drugs were mine, but Iknew it didn’t matter. The damage wasdone. A few days later, I resigned my joband a special prosecutor was appointed tohandle the investigation.

As I saw it, I had two choices at thatpoint: 1) stop using meth and face reality, or2) keep using a drug that made me insanelyhappy, no matter how bad my life became.I knew if I kept using meth there was agood 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 wantedit to be over.

But I had a different problem now.Snorting meth no longer put enough of thedrug into my bloodstream to make its

magic work. I needed to get a lot more inme, a lot faster. So I started injecting it. At$25 a shot, that was expensive, and withina few weeks I was completely broke. Notsurprisingly, that’s also when my relation-ship ended. Once my significant other wasgone, I felt completely lost.

All my former friends were prosecutorswho couldn’t have any contact with me. AllI had left was meth. However, I was still anexperienced criminal attorney—one whonow knew dozens of meth addicts, most ofwhom desperately needed representationfrom a lawyer they could trust. You’re prob-ably thinking, “You were still able to prac-tice? Didn’t the Washington Supreme Courtsuspend you?” No, they didn’t. Because Ihad yet to be charged with any crime.

When word went out among the methaddicts in Seattle that I was going to startpracticing criminal law again, they quicklybecame my client base and my friends.They almost never had money, but theyalmost always had meth. My addictionfound a way to survive.

Propped up by the chemically inducedconfidence of meth, I walked back into theKing County Courthouse in May 1998,three months after resigning my job, andstarted my career as a criminal defenseattorney. Much to my surprise, I loved itjust as much as I loved being a prosecutor.That’s when I realized I might still have afuture. I wanted to live, but only if I couldstop using meth.

The Public Learns My NameSo I made a plan: I’d save up enough

money to pay for rehab and get my mortgagecurrent, then block out enough time in myschedule 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 interruptedwhen the special prosecutor handling thecourthouse incident decided not to chargeme with drug possession. His decision pro-voked an angry backlash of editorials andnewspaper articles claiming preferentialtreatment 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, mycase 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 offall my paying clients. No one wanted tohire me. Soon I started getting notices frommy mortgage lender threatening me withforeclosure, and then my phone and utili-ties were turned off. Even though I was nowno longer facing potential drug charges, mylife kept getting worse and worse. That’swhen I finally gave up trying to save myself.

About a month later, in December1998—a year into my addiction—my exstarted calling me again. He said he neededmy help getting some meth for a friend ofhis. He told me if I could finance the deal,we could split the profit. It didn’t take a lotof convincing at that point: I could nolonger see any future, and like most methaddicts, it wasn’t the first time I had donesomething like this. My ex set up the initialmeeting and I obtained the drugs. Over thecourse of the next two months, I sold drugsto his friend three times.

On February 16, 1999, the fourth timeI was supposed to sell his friend drugs, thefriend showed up at my house with a SWATteam, a battering ram, and a KOMO 4News team to film my arrest live on televi-sion. It turned out the “friend” was anundercover cop and my ex was makingmoney setting me up for the police.

Well, that was the luckiest thing thatever 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 happenquickly. After my arrest, I used my knowl-edge of the criminal justice system to stallmy trial for over a year and a half. I still hadmy license to practice law, but it was almostimpossible for me to concentrate on the lit-tle bit of work I had. It was during this timebetween my arrest and my trial that I mademy first serious attempt at drug rehab.

Rehab and Picking Up Where You Left Off

There are two basic schools of drugrecovery programs. One is the 12-stepapproach, which uses a person’s faith inGod, or a “higher power,” to help recoverfrom addiction. The other approach isbased on cognitive behavioral therapy—aschool of psychology that employs a varietyof techniques to help a person understandtheir addictive behavior and quit using. Myfirst rehab was based exclusively on the 12-step model. I’m a huge fan of the 12-step


10 FALL 2014

program; I’ve seen it help a lot of people,and I have witnessed firsthand the amazingpower of faith.

But I am also a lifelong atheist. So “faith”just isn’t one of the tools in my toolbox. Atrehab I openly questioned the appropriate-ness—for me—of a “faith-based” or “spiri-tual” recovery program. After ten days ofarguing, I was told by the facility directorthat I was in the wrong place and that Ineeded to leave. I returned to Seattle andstayed clean for a few months, but by lateautumn of 1999, I relapsed with avengeance. It was during that first majorrelapse that I learned the truth of one ofmany valuable sayings taught to me by the12-step program: “You pick up where youleft off.” What does that mean? That meanswhen you’re dealing with addiction, and youstop using your drug of choice for a while,then relapse, you don’t get to go back to thefeelings you had during the first few funtimes you used. The drug won’t do that neatlittle trick for you anymore. Instead, you goright back to the crappy feelings you hadjust before you quit.

With chronic meth use, you reach apoint where the drug no longer makes youfeel good, because you have literally workedthe dopamine-producing cells in your brainto death. They’re gone. The meth still givesyou an adrenaline rush, but now the drugstarts to make you crazy—paranoid, delu-sional, or severely ADD. But you know thatif you stop using meth, you’ll becomeincredibly weak and depressed. So every dayyou use, you’re choosing between beingcrazy and being depressed.

When I relapsed, I became really angry,distracted, and convinced everyone was outto get me. My law practice was in shambles.It was impossible for me to be an effectiveadvocate when I couldn’t even predict whenI’d be awake. Even with planning, alarmclocks, and the best of intentions, I missedcourt dates and important appointmentsbecause I had stayed awake for too manydays, run out of meth, and fallen uncon-scious. The judges and prosecutors werecompletely fed up with my behavior—and

with good reason. It was obvious to every-one I had relapsed and that I should nolonger be practicing law.

I continued to use meth right throughmy trial in July 2000. I wasn’t surprisedwhen I got convicted. I expected it. That’swhen the Washington Supreme Court final-ly disbarred me.

Even after my conviction, I managed tostay out of custody while my case was onappeal. I was homeless at that point and liv-ing on the couches of other drug addicts allover Seattle. That’s when I finally hit myrock bottom. I knew that, compared towhere I was at that moment, prison wasgoing to be a step up for me—at least inprison I’d have a bed, clean clothes, and reg-ular meals. Only I was determined not to goto prison addicted. So I made a new plan toget clean—a much more realistic plan.

I got myself into a state-funded rehab(this time based on the cognitive behavioraltherapy model of recovery), moved intoclean and sober housing, and found work asa housekeeper at a Victorian bed and break-fast on Seattle’s Capitol Hill. The owners ofthe B&B were a woman and her elderlymother who had followed my story in thenewspapers, felt sorry for me, and miracu-lously agreed not only to be my employers,but also my surrogate family as I struggledthrough the first years of my recovery. Theywere difficult years. I gained 50 pounds. Iwas often severely depressed. My brain stilldidn’t function well. The cravings for methwere intense. But at least I had someincome, a job with lots of leftovers to eat,and the love and support of those twowomen who owned the B&B. I knew theygenuinely wanted to see me succeed and itmade all the difference. If it weren’t forthem, I probably wouldn’t have made it.

Serving TimeAfter successfully completing six months

of rehab and staying meth-free for over ayear, I knew what had to happen next. InAugust 2002 I withdrew my case from theWashington State Court of Appeals, and onSeptember 22 I turned myself in to the

Department of Corrections to start servingmy sentence.

My situation in prison was precarious.After all, I was an openly gay former prose-cutor forced to serve my time in the samejurisdiction where I had spent years puttingviolent felons behind bars. Most of that timeI went unrecognized, and I was fine. Butthere were times when I was recognized bymen I had prosecuted for serious violentoffenses, and things got dangerous quickly.As a result, I spent more than two monthslocked up in solitary confinement for myown protection, in a 9 x 6 foot cell withbright fluorescent lights that could never beturned off. There were many days when Ithought I would lose my mind.

Despite that, I will always value the timeI spent in prison, the vast majority of whichwas really helpful. In prison I was safe fromtemptation during the early fragile years ofmy recovery. I could never have afforded thetwo-year inpatient drug rehab I needed.Prison served that role in my life. I met hun-dreds of men whose lives had been destroyedby drugs, especially meth. For many ofthem, the drug had taken their teeth,destroyed their skin, and left them with hor-rible burns from meth lab accidents. Somehad lost their minds.

In prison I learned that this was theinsanity I had helped foster when I gotinvolved with meth, and this is what I wouldbecome if I went back to using it. It was alife-changing lesson and an amazing gift.And although I will always do everything Ican 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 Ifinally reconnected with family and friends.When their letters came flooding back in, Irealized I was no longer alone in my strug-gle, and I began to believe that if I could stayclean, I just might be able to get my lifeback.

Gaining HopeThe 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.”


doesn’t allow disbarred attorneys to work asparalegals in Washington, but other statesdon’t have that rule. So after my releasefrom prison on September 12, 2004, Imoved my parole from Seattle toWilmington, North Carolina, where Ireunited with my family and got a job in acivil litigation firm as a paralegal and officemanager. I worked there for the next eightyears.

During those eight years, I got involvedwith the North Carolina State Bar’s LawyerAssistance Program (or LAP, as it’s called).LAP trained me to be a volunteer and letme serve as a mentor, monitor, and recov-ery coach for other drug-addicted lawyers.LAP also got me speaking at CLEs, highschools, and community groups aboutmeth addiction and recovery.

It was through LAP that I started goingto lunches for lawyers in recovery. Thelunches were like 12-step meetings just forattorneys. I went reluctantly at first, butafter 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 Iwas still carrying around with me about thethings I had done to other people whileusing meth—things like worrying my fam-ily and friends, embarrassing my co-work-ers, disappointing my clients, and worst ofall, enabling the addictions of otheraddicts. Those lunch meetings gave me asafe place to talk about my guilt andremorse, and the lawyers there helped mefind a way to live with those feelings. I hadrecovered from meth addiction long beforeI ever went to my first LAP lawyer lunch,but the things that happened to me atthose meetings finally made me feel like Iwas healed.

It turns out you don’t really need “faith”to benefit from a 12-step meeting. All youreally need to do is talk and listen. And itwas also at those lunches that the otherlawyers convinced me to try and get my lawlicense back in Washington. I knew withfour felony convictions the chances wereslim, but they had faith I could pull it off.

ReinstatementIt took me almost a year to get ready for

my hearing before the WSBA Character andFitness Board in 2009. I was still a total con-trol freak about all things resembling trials. Irepresented myself. The hearing lasted overseven hours. After a lot of testimony, a lot ofargument, 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 inJune 2010. Although my original plan wasto then get admitted to the bar in NorthCarolina, part of me never gave up on theidea of moving back to Seattle. As fatewould have it, after 12 years of being single,I ended up getting married just a fewmonths before Washington passed marriageequality by popular vote. I took that as asign. So a year ago in June, my husband andI packed the car and headed west.

I’ll always miss North Carolina, butSeattle feels like home. It feels like where Ibelong. And it feels like the place where mypersonal 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 HumanServices 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 discardedindoors 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’sNational Drug Intelligence Center(justice.gov/archive/ndic/pubs44/44731/44731p.pdf).

• A 2010 National Drug Threat Study found that meth andcocaine 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 drinkingproblems are twice the national rate, according to the ABA’sCommission on Lawyer Assistance Programs. (niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/alcohol-facts-and-statistics;americanbar.org/groups/lawyer_assistance/resources/alcohol_abuse_dependence.html)

METH BY THE NUMBERS

most good for other people struggling withaddiction. But I realize I can’t be a properrole model for recovery if the people whoneed me most can’t see me. So I make sureI’m visible to them by representing themand telling them my story. Not surprisingly,many of my criminal and family law casesinvolve issues of addiction.

Recovery from meth is not impossible oruncommon. In my experience, it often takes alot 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 lotto do with how isolated I became from mysober family and friends, and even more to dowith my false belief that recovery from methaddiction was not possible. People have recov-ered from meth addiction, but the stigmamakes it very hard to identify themselves pub-licly. If recovered meth addicts don’t start com-ing out of the shadows and showing theirrecovery to the world, the lie that you can’t

recover from meth addiction will continue andbe a huge obstacle for those trying to quit.

Getting HelpIf you have a problem with addiction, the

NC Lawyer Assistance Program is ready toprovide confidential help. You can meet with aLAP counselor personally, or LAP can set youup with a peer counselor (a fellow attorney)who can speak to you about your options. Bestof all, anything you tell your peer counselor isconfidential pursuant to Rule 1.6(c). Don’t beafraid to ask for help and don’t be afraid toaccept help when it’s offered.

But what if the problem isn’t with you?What if someone you care about or work withis struggling with addiction? What can you doto help? Those are really difficult situations,often complicated by a host of other issues. AllI can say for certain is that it’s important thatyou don’t enable them. Don’t give them oppor-tunities, or excuses, or resources that make iteasier for them to continue using. But don’tgive up on them, either. Don’t stop caringabout them. Tell them their substance abuse isscaring you. Tell them you want them to stop.And remind them that when they’re ready tostop, you’ll still be there for them, because youcare about them.

It can make all the difference. n

Douglas Wilson “Wil” Miller is a litigator inSeattle with a private practice focused on criminaldefense, family law, and personal injury. Millerdevotes much of his spare time to providing probono legal services to the survivors of domesticviolence, and serving as a recovery coach to meth-addicted lawyers throughout the country. He vol-unteers with the WSBA Lawyers AssistanceProgram. He can be reached [email protected].

The North Carolina Lawyer AssistanceProgram is a confidential program of assistancefor all North Carolina lawyers, judges, and lawstudents, which helps address problems of stress,depression, alcoholism, addiction, or other prob-lems that may lead to impairing a lawyer’s abilityto practice. If you would like more information,go to nclap.org or call: Cathy Killian (forCharlotte and areas west) at 704-910-2310,Towanda Garner (in the Piedmont area) at 919-719-9290, or Robynn Moraites (for Raleigh anddown east) at 704-892-5699.

The Washington State Bar Association grantsauthorization to the NC State Bar to reprint “LifeAfter Meth” by Douglas Wilson “Wil” Miller, whichappeared in the June 2014 issue of NWLawyer.

12 FALL 2014


Arecord number of attorneysacross North Carolinacarved time out of hecticschedules to complete theJudicial Performance

Evaluation (JPE) surveys conducted by theNorth Carolina Bar Association—and theprocess will continue to create a moreinformed electorate.

All candidates for the trial bench in 2014were evaluated. The JPE Survey Phase I wasconducted in November 2013, covering supe-rior and district court judges whose terms willexpire in 2014. Phase II was conducted at theend of the February 2014 filing period, cover-ing newly installed judges and nonincumbentcandidates.1 The combined results for all con-tested judicial seats are currently available forpublic review in advance of the general elec-tion on November 4, 2014, atElectNCJudges.org. The nonincumbent sur-vey is the only one of its kind in the US.

The state of North Carolina has elected itsjudges for more than a century. But if one asksjust about any person on the street the meritsof one judicial candidate over another, theanswers will vary dramatically in degree ofknowledge or ignorance. Judicial election can-didates receive little consideration by the gen-eral voting public—despite the critical jobsperformed by members of the bench—because of a previous dearth of knowledgeavailable for review before ballots are cast. TheNorth Carolina Bar Association has sought tofill that knowledge gap. Its efforts have metwith widespread success, thanks to the inputof thousands of attorney participants.

“Phase I of the JPE survey harvested31,000 individual responses, and Phase II(covering the challengers) 7,298 individualevaluations, 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 extensiveinformation for voters on nine superior anddistrict court races that appeared on the pri-mary ballot on May 6.

The results from the JPE survey are easilyaccessible to the public through the websiteElectNCJudges.org. A voter simply clicks onthe county of residence, and all contested trialcourt seats on his or her ballot appear in PDFformat, printable and accessible on handheldelectronic devices. Thirty-seven counties arerepresented. The 2014 election cycle willmark the second time members of the publicwill have access to the survey results.

Each active North Carolina attorney wasencouraged to evaluate each judicial candidatewith whom the attorney has had a level of pro-fessional contact in six categories: Integrity &Impartiality, Legal Ability, Professionalism,Communication, Administrative Skills, andOverall Performance. To preserve the integrityof the feedback, the names and responses fromparticipating attorneys were kept confidential,with an outside accounting firm hired to con-duct the surveys.

“We are grateful to the lawyers across thestate for their participation in both phases ofthe survey for the 2014 election cycle,” Norellisays. “Voters, as we learned during the lastelection, are grateful to have access to thisinformation before they go to the polls.”

The goal for the JPE Committee movingforward is to make sure that members of thepublic are aware of this exceptional resource.The NCBA will market the website through-out the election season in print and onlinepublications, and will also be conducting asocial media campaign to promote the survey.

“We are encouraging members of theNCBA to talk about the website and the sur-

vey, both at work and in their broader com-munities,” said Matt Sawchak, the currentchair of the JPE Committee. “It’s important toremember how the results of judicial electionshave a far-reaching impact on the lives of allNorth Carolinians. Helping alert the public tothese survey results is a great way to serve ourfellow North Carolinians and promote animpartial judiciary.”

This project was made possible by a grantfrom the NCBA Foundation Endowment. Itis another example of how North Carolinalawyers serve the public and our judicial sys-tem. n

Ms. London, a former professional journal-ist and 2011 graduate of Charlotte School ofLaw, is a member of the faculty at CharlotteSchool of Law.

Endnote1. 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 whoare not seeking election are not reported.

Informing the Public inUpcoming Judicial Elections

B Y A S H L E Y M . L O N D O N

14 FALL 2014

If it Feels Like Technology isMoving Faster, It’s Not Just You

B Y E R I K M A Z Z O N E

Ispent 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 incrediblyvibrant time for technology. The stew ofsmart phones, cloud-based software, andubiquitous internet connections—alongwith investments from venture capitalists—have produced a torrent of products andservices that have transformed the way virtu-ally all of us use technology in our personaland professional lives. At the Bar Center dur-ing breaks in CLE programs, you’d be hardpressed to find a lawyer not hunched over asmart phone, pecking out emails and puttingout fires.

These technological advancements docome with a cost: they sometimes provideservices that bump uncomfortably into ourethics rules. Because our ethics rules (ofnecessity) lag the pace of technological inno-vation, it can be frustrating to embrace newservices without knowing whether they will

eventually pass ethical muster. That said, thebusiness justification for embracing thesenew technologies is so persuasive that itremains worth figuring out how and what toincorporate into your practice.

In this article, I’ll address two of the mostsignificant technology trends that havemarked the last year or two and which Ibelieve are likely to impact the next couple ofyears as well. These are not companies, serv-ices, or apps; they are meta-trends in thetechnology world that will have a profoundimpact on us as technology users. The twotrends are the sharing economy and the evo-lution of cloud-based software.

The Sharing EconomyThe phrase “sharing economy” might be

new to you, but it’s based on an old idea: thatborrowing something expensive (say, a pick-

up truck) from a friend is more efficient thanbuying one of your own if you only need itonce in a while.

The sharing economy refers to this oldidea of sharing expensive goods and services,but puts a new wrapper around it. There is aburgeoning posse of companies, services, andapps dedicated to using technology to helpmake the sharing of these big ticket itemsmore frictionless.

It’s easiest to think about it as a time sharecondo. Time share condos became popularbecause even if you could not afford to pur-chase a vacation home in a resort area for sev-

Dave C

utler/Illustration Source

eral hundred thousand dollars, most peoplecould afford to purchase the right to use avacation condo a single week each year as atime share. Along with 51 other purchasers,they share the costs of the condo.

In the way time shares make vacationcondos 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 roomsand entire residences, and so on.

These examples are consumer-focused,but the sharing economy is reaching intoservices used by law firms as well. RubyReceptionists is a phone answering servicethat law firms pay for a certain number ofminutes of phone answering per month.Speak Write is a web-based typing servicethat allows users to purchase just the portionof transcription support needed, paying bythe word. Lawyers have been sharing realestate for a long time, but in recent years therise of executive suite services like Regus hasformalized these arrangements and reducedcosts and increased flexibility for countlessfirms across North Carolina. The businessjustification for these sharing economy serv-ices is easy to see: it reduces large capitalexpenditures, allows the flexible increase ordecrease of services as needed, and preventspaying for more support than one needs.

As these sharing economy servicesbecome more popular, ethics guidance hasbegun to surface. 2012 FEO 6 (use of time-shared office address on letterhead andadvertising) cautions that use of a time-shared address in advertising or letterheadcan’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 alawyer must obtain written consent from herclient before outsourcing tasks such as tran-scription to a foreign jurisdiction.

The upshot is that for staffing support,real estate, and virtually any other expensivepurchase a lawyer needs to make, it is worthlooking to see if the sharing economy hasprovided a more affordable option. If you dofind some shared resources that work, re-readthe Formal Ethics Opinions and see if youneed to update your client agreements.

The Evolution of Cloud-Based SoftwareWhen use of cloud-based software was

ratified for lawyer use (subject to a reasonablecare standard) by 2011 FEO 6, it drew an

invisible line among the practicing bar.Lawyers quietly sorted themselves into thosewilling to let their clients’ confidential infor-mation be stored on computers outside theiroffice walls and those who would not. Threeyears into the evolution of cloud-based soft-ware, it has become harder than ever for thelatter group to maintain their prohibition.

While it’s pretty straightforward to avoidthe use of obvious cloud-based applicationslike Dropbox, Gmail, and Clio practicemanagement software, it’s not always so easyto spot software that relies on cloud technol-ogy in one fashion or another. Smartphonesand tablet computers have quietly openedthe backdoor to use of cloud software in twokey ways. First, messaging apps, includingtext messages, have begun to supplant emailas 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-basedsoftware. Lawyers who eschew storing clientdata in cloud-based services like Dropboxoften think nothing of exchanging text mes-sages laden with confidential information tothe 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 Microsoftfinally made its Office suite available foriPads earlier this year. It instantly improvedthe use of iPads for document creation andediting. Use of those apps (as well as count-less others used for document creation andediting) is diminished if not made virtuallyunusable without connecting them to anonline storage service like Dropbox orWindows OneDrive.

It never feels particularly like you areusing the cloud; it just creeps in to help makethe tablet and apps work more seamlesslytogether. We should expect it to get harder toavoid cloud-based software in the future,both because it will mean forgoing servicesthat will allow us to serve clients more effi-ciently, and because it will be harder to tellwhen we’re actually using the cloud.

The takeaway here is that if you are deadset against using the cloud in any capacity foryour professional life, you will need to exer-cise great diligence to make sure you aren’tinadvertently relying on a cloud service.

SummaryThings are happening fast in this zone.

The sharing economy and the evolution ofcloud-based software will continue to shapethe landscape for advances that allow us topractice more efficiently and serve our clientsbetter. Understanding these trends enableslawyers to understand the ethical implica-tions of using the services and apps that relyon them.

It’s been a remarkable six years. Whocan possibly imagine what the next six willbring? n

Erik Mazzone is the director of the Centerfor Practice Management at the North CarolinaBar Association where he dispenses practicemanagement and technology advice, and helpsdispose of leftover food from CLE programs.


16 FALL 2014

Washington State isleading the nation inlicensing nonlawyersto practice law on alimited basis with itsLimited License

Legal Technician (LLLT) Program. As thefirst state to implement such a program,Washington breaks new ground and serves asthe model for other states that seem wellpoised to take the leap, including Californiaand New York.

History and Creation of the LLLT RuleThe genesis of this effort arose in part

from alarming statistics regarding the needfor access to legal services amongWashington’s moderate to low income citi-zens. According to a 2003 Civil Legal NeedsStudy, nearly 88% of low incomeWashington residents face their legal prob-lems alone, without the assistance of anattorney. Often these legal problems relate tofamily law, housing, consumer law, and otherbasic needs. The LLLT Program seeks to pro-vide competent, reduced cost legal services tothis underserved population.

In response to the Civil Legal NeedsStudy and concerns regarding the unautho-rized practice of law, the WashingtonSupreme Court took the monumental stepof adopting the LLLT Rule—a rule that

would for the first time provide a regulatoryframework for educated and experiencedparalegals to obtain a limited license to prac-tice law in approved practice areas. In itsorder adopting Admission to Practice Rule(APR) 28, the Washington Supreme Courtstated “[w]e have a duty to ensure the publiccan access affordable legal and law relatedservices, and that they are not left to fall preyto perils of the unregulated marketplace.”(Order at 5-6). With the adoption ofAPR 28 in June 2012, the Washington

Supreme Court created a new legal profes-sional—the Limited License LegalTechnician (LLLT).

The LLLT BoardThe Washington Supreme Court created

the LLLT Board (board) to govern the LLLTProgram and to ensure LLLTs are well-trainedin ways that protect the public from the unau-thorized and unregulated practice of law andincrease access to justice. The board is staffedand the program is administered by the

Washington State LLLTProgram: Improving Access to Justice

B Y T H E A J E N N I N G S

At the request of State Bar President Ron Baker, the Board of Paralegal Certification has been monitoring efforts in other states to permit limitedlicensing of nonlawyers to provide discrete legal services to the public, targeting litigants of modest means. The recent “legal technician” initiative inWashington State has prompted several other jurisdictions to consider expanding the scope of legal services to be offered by qualified legal technicians asa form of authorized practice. While the Washington program was just launched this year, the Board will follow its progress to determine whether itincreases 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 firstpractice area in which to license LLLTs, whichthe Washington Supreme Court unanimouslyapproved in March 2013. APR 28 contem-plates that the Rule would be applied to otherpractice areas. Consideration of additionalpractice areas will be undertaken during2014.

The board is acutely aware of its duty toprotect the public and increase access to jus-tice. For its first year, the board spent longhours defining the LLLT family law scope ofpractice and qualifications for the LLLTlicense.

Scope of Practice for LLLTsSelf-represented litigants are frequently

unprepared to advocate for their interests incourt or against an opposing party, often-times to devastating effects. The role of theLLLT is to help these litigants navigate thelegal process and to arm them with the toolsthey need to adequately represent them-selves. The limited scope of legal services theLLLTs may provide to pro se clients includes:

• informing clients of procedures and thecourse of legal proceedings,

• providing approved and lawyer pre-pared self-help materials,

• reviewing documents and exhibits fromthe opposing party and explaining them toclients,

• selecting, completing, filing, and servingapproved and lawyer prepared forms andadvising of their relevance,

• advising clients of necessary documentsand explaining their relevance, and

• assisting clients in obtaining necessarydocuments.

There are specific actions LLLTs may notengage in, such as representing a client in acourt proceeding, negotiating a client’s legalrights, and discussing a client’s position withanother person or conveying the position ofanother party to a client. LLLTs must adviseclients to seek the advice of an attorney formatters outside the scope of their authority.

QualificationsDuring 2013, the board worked consci-

entiously to develop LLLT qualificationsthat guarantee both the protection of thepublic, and that LLLTs possess the knowl-edge and skills to practice in their field.

LLLTs will be well educated, trained, andtested before licensure.

EducationOf great importance to the board is estab-

lishing the credibility of the program byrequiring a rigorous course of study that willguarantee the competence of legal techni-cians coming into the profession. LLLTsmust have:

(1) a minimum associate level degree, (2) 45 credit hours of core curriculum inlegal studies from an ABA approved pro-gram, and (3) attended practice area courses devel-oped by or in conjunction with an ABAapproved law school.Unanticipated partnerships have devel-

oped between the board and Washington’shigher learning institutions, which is sure tocontribute to the success and integrity of theprogram. Both Washington’s communitycolleges and law schools have combinedforces with the board to further the goal ofmaking the education affordable, accessible,and academically rigorous.

Representatives from each of theWashington law schools assisted the boardwith developing the domestic relations prac-tice area courses. What has resulted is a tech-nologically innovative and collaborativeapproach to offering the courses. The 15-credit hour, three-quarter class will be web-cast, meaning students can attend in realtime from any location nationwide. TheUniversity of Washington’s School of Lawbegan offering the series of courses for thefirst time in Winter Quarter 2014 for a frac-tion of the cost of law school. Professors fromall three Washington law schools will assist inthe delivery of the education.

Recognizing that many competent andexperienced paralegals currently in the work-force may not have completed the LLLTeducation, the board approved a limited timewaiver, or grandfathering provision, thatseeks to balance the need to protect the pub-lic with the great need for access to justice inour state. The waiver qualifies these individ-uals for licensure without completing therequired associate degree or core education.The waiver applies to those who have:

(1) passed NALA’s Certified ParalegalExam, (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 areaeducation. The short term waiver periodends December 31, 2016.

ExamAfter completing the LLLT education,

there are two exams to pass: the core educa-tion and the practice area exams. Given thatLLLTs will advise clients on their legal rightsand responsibilities, the examination will teston not only general coursework, but also onthe ability to assess a client’s case and recom-mend an appropriate course of action.

ExperienceGiven that the LLLTs may set up their

own firms without the supervision of anattorney, experience ensures LLLTs have thetools and expertise to provide competentlegal services autonomously. Before enteringthe profession, LLLTs must have completedat least 3,000 hours (18 months full time) ofsubstantive law related work experiencesupervised by a lawyer. The experience mustbe gained three years before or after passingthe exam.

Next StepsThe board continues to create the opera-

tional details of the LLLT Program, includ-ing drafting the Rules of ProfessionalConduct (RPC) for LLLTs, which are theethical rules LLLTs must abide by. Amongthe many ethical situations the board mustgrapple with are the types of business rela-tionships LLLTs may form, the results ofwhich may well change the landscape oflegal service providers in our state. Theboard is also hard at work developing thedomestic relations practice area examina-tion, which will include multiple choice,essay, and practice exercise sections. If allgoes according to projected timelines, thefirst LLLT examination will be held inMarch 2015, with the first LLLT licensesissued by early Spring 2015. n

Reprinted with permission of NALA, TheNational Association of Legal Assistants/Paralegals, and by Thea Jennings. This articleoriginally appeared in the January/February2014 Facts & Findings, NALA's bi-monthlymagazine for paralegals. The article is reprintedhere in its entirety. For further information, con-tact NALA at nala.org or (918) 587-6828.


18 FALL 2014

Despite an increasing need for free civillegal services, legal services providers haveexperienced cuts to every traditional fundingsource, both private and public. Since 2008,state funding has decreased by 40% in NorthCarolina, and United Way and IOLTA grantshave dropped by 32% and 30%, respectively.Further, increased scrutiny facing non-profitsacross the country is putting pressure on all todemonstrate the value of their work, puttingmore emphasis on measuring outcomes andrequiring frequent reporting on progress.

As a result, legal services providers nation-wide have turned to economic impact studiesto build the case for investment in their pro-

grams. Economic impact research providesinsight into the specific impact on a particulargeographic area due to a change in the econ-omy. In the legal services industry, thisresearch measures the value of advocacy thatbrings new direct benefits into the state—usually federal dollars—which then stimulatethe economy, resulting in additional indirecteconomic impacts.

The findings? Civil legal service providersundoubtedly spur local economic growth andsave the state money. For every dollar spentby the state on legal aid, nearly $10 flows intothe economy for the residents of NorthCarolina—a 108% return on the state’s

investment in legal services. The need for legal services far surpasses

available resources of legal services providersto represent all eligible clients. “Whileresources to support legal services havedecreased, the need for legal assistance isgreater than ever,” said George Hausen, exec-utive director of Legal Aid of North Carolina,“and our goal is to ensure the basic needs ofpeople are met, including access to food, shel-ter, safety, and healthcare.” Further invest-ment will result in justice for those in need oflegal assistance and economic benefit for allNorth Carolinians.

The North Carolina Economic ImpactStudy

Released in January, the study “A 108%Return on Investment: The Economic Impactto the State of North Carolina of Civil LegalServices 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 cashassistance programs for low-income families,and federal tax refunds. Without the help of afree attorney, the benefits likely would nothave been secured by clients working on theirown. The study also found an additional $8.8million was awarded to low-income clients inchild support and housing cases. This includesawards of monthly child support paymentsand past due support for struggling single-par-ent families. Housing awards include protec-tion of housing benefits, rent abatements dueto problems with the condition of the housingunit, return of a client’s security deposit, oravoidance of unreasonable charges by thelandlord.

“This report quantifies what we knewanecdotally,” said Jennifer Lechner, executivedirector of the North Carolina Equal Access

The Bottom Line—LegalServices is a Good Investment

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

Public 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.


to Justice Commission. “Legal aid is good forNorth Carolina—not just for their provisionof legal services to those who would otherwisebe unable to access the justice system, but alsothrough the economic benefit these servicesbring to the state as individuals spend moneyat businesses in their communities.”

Flowing from the direct economic bene-fits, the study also found an indirect impactof nearly $13.9 million. The indirect impactprovides an estimate of the changes in thelocal and state economies when new federalrevenue enters the market and additionalspending occurs. The estimate includesincreases in employment, wages, and businessoutputs. While only an estimate of increasedeconomic activity, the number captures thebenefit to the community as a whole of pro-viding legal services to those who could nototherwise afford an attorney.

The report also found that the efforts oflegal services providers to prevent domesticviolence, eviction, and foreclosure generatecost savings for the state of $17.1 million.Cost savings represent the amount saved bythe state and local communities in emergencymedical services, mental health treatment,

public health, court costs, unpaid propertytaxes, police and fire services, social services,and other public services. For example, bypreventing 488 foreclosures, legal serviceskept many families who were the victims ofmortgage scams in their homes and reducedlocal government expenditures to securevacant, foreclosed properties.

“Poverty is the greatest challenge facingthe people of North Carolina,” said GeneNichol, director of the Poverty Center. “Byadvocating for the rights of the poor, thework of legal services lawyers brings us closerto equal justice under the law. It also gener-ates an economic benefit to the state worthmillions.”

Access to Justice Makes Dollars andSense

In addition to depriving North Carolinafamilies of much needed access to the justicesystem, lack of civil legal representation leavesmoney on the table that could have boostedthe overall economic outlook of the state.This study, not unlike scores of others donein states across the country, suggests furthereconomic gains with increased funding for

legal services given the inadequate capacity ofproviders to serve all those who are eligible.

The primary focus of civil legal serviceproviders is to ensure access to the civil legalsystem for all, regardless of ability to pay.“The financial benefits do not begin to meas-ure the full value of this work,” said KenSchorr, executive director of Legal Services ofSouthern Piedmont and member of the NCEqual Access to Justice Commission.“Protecting women and children from vio-lence, keeping families from being separatedor homeless, helping elderly and disabledpeople stay in control of their lives, and otherlife-changing benefits cannot be measured interms of dollars.”

However, in working to meet clients’ legalneeds, legal services organizations gainimmense benefits for the state, reaching farbeyond the individual clients and familiesserved.

To read the study, visit the North CarolinaEqual Access to Justice Commission, nce-qualaccesstojustice.org. n

Mary Irvine is IOLTA’s access to justicecoordinator.

20 FALL 2014

When Gray Wilsonasked me to inter-view Jamie Dean, anattorney with theWomble Carlylefirm in Winston-

Salem, I wondered where the point of inter-est was. Dean graduated Summa Cum Laudefrom Wake Forest University and then fromthe Wake Forest School of Law, Magna CumLaude, and also received a Master’s inBusiness Administration. Along the way,during his student years, he was inducted inboth Phi Beta Kappa and the MortarboardNational Honor Society. Further, he was asilver medalist in adaptive rowing in the2008 games in Beijing. The major law firmsin the United States look to hire, and do hire,the academically elite, so why is the story ofJamie Dean any different from the otherhonors graduates? All of his accolades are setforth in his Womble Carlyle profile, with oneomission! Until you meet him you wouldnot know that Jamie Dean has a disability,one that he describes as both beneficial tohim and also as an inconvenience. I met withJamie 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 blindfrom birth? What sports have drawn yourinterest, and are these sports activities cor-rectly called “adaptive”? Your sport in the2008 Paralympic games in Beijing was“adaptive rowing”. You stated that you donot consider yourself to be an adaptive per-son. How so? What does that mean?

Jamie Dean (JD): I was legally blindfrom birth due to a disease called retinitispigmentosa (“RP”). RP didn’t affect my

visual acuity so much as it reduced my visualfield. I’ve heard people compare my condi-tion to trying to look at an elephant from six

“Living with Blindness Has GivenMe a Broader Perspective...”—AnInterview with Attorney Jamie Dean

B Y J O H N G E H R I N G

inches away: the image is clear, but you justcan’t see the whole picture. When I was achild, my vision did not have a great impacton my life. I could read, write, ride a bike,and do most things other kids could do. AsI neared middle school age, my visual fieldtook its most significant decrease, and thatprocess continued gradually throughouthigh school. By the end of high school, I wasrelying on my first seeing eye dog and usingadaptive technologies like a talking comput-er and recorded books. At present, my visionis pretty much limited to distinguishingbetween light and dark.

Sports have been an integral part of mylife since a pretty young age, due mainly tothe persistent prompting of my dad. He sawthat I needed something from which to drawconfidence and to keep me connected toother kids my age, so he really pushed me totry new things and to stay the course whenmy athletic endeavors were not going myway (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 mosttime in mainstream competition. When Icame to Wake Forest, I joined the rowingclub, because rowing seemed like one of thefew sports for which sight was not a prereq-uisite and because the club’s leadership didn’tseem as daunted as some other clubs aboutthe prospect of having a blind member.

As for “adaptive” sports, I had neverheard of “adaptive rowing” until my very lastcollege race. At that race, a former nationalteam coach spotted me using a white canewhile still in my spandex unisuit (the mostsignificant drawback to rowing), put twoand two together, and introduced me to thecurrent national adaptive team director. Thenext spring, I was invited to try out for thenational adaptive team and, over the nextthree years, I was honored to compete forTeam USA in the United States, Canada,Germany, England, and, in 2008, theParalympic Games in Beijing, China.

“Adaptive” rowing really is no differentfrom any other form of rowing, except thatall participants have physical disabilities.There is no difference in the stroke, equip-ment, or technical aspects of the sport. Themain distinctions between my adaptive racesand my college races before them were that(1) in my adaptive races, my crew was com-prised of two men and two women, which isnot done in any other collegiate or Olympic

rowing event and (2) our “adaptive” raceswere only 1,000 meters long instead of the2,000 meter length used in other collegiateand Olympic races.

I am extremely proud to call myself aParalympian. However, before joining thenational team, I never would have consid-ered myself an “adaptive” athlete as much asan “adapted” athlete. In other words, I hadbeen able to compete in the mainstreamdespite my blindness. The same is true ofmy 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. Ido not define myself by my lack of sight,and my hope is that others see past the see-ing eye dog and cool adaptive technologiesto the father, husband, and lawyer behindthem, as well.

JG: You have said that being blind hasbenefitted you and that most of the time thisdisability is just an inconvenience, some-times a major inconvenience. Please describethe benefits and inconveniences.

JD: The most valuable benefit of blind-ness is perspective. I often tell people that, ifyou think I am cocky now, imagine howinsufferable I would be if I could see. Thatis more truth than gest. Blindness hasforced me to see the importance of relianceon other people and not being too proud toask for help. In our hyper-independent cul-ture, this adjusted perspective keeps megrounded and, in my better moments, givesme a greater appreciation for the peoplearound me.

To jump back to your earlier question,athletics bore out another of the great bene-fits of blindness. When I started rowing, toput it bluntly, I was abysmal. I mean, myperformance was shameful. At the first teamtime-trial, I was the slowest man, by far, andslower than two or three of the women.However, one thing blindness taught me isthat sometimes, to get what you want, youhave to work harder and put in more timethan everyone else. That was the approach Itook. I lifted weights, gained muscle, didextra workouts, and so on until I caught upwith the others on my team, and eventuallyworked my way into the stroke seat of thevarsity men’s lightweight crew. That is whereI remained for my sophomore, junior, andsenior years. I think the perseverance thatfueled my transition was something thatdeveloped 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 othersare not being able to drive and not being ableto read print. There are ways to get aroundboth of those things, but they are decidedlyannoying to someone like me who likes toget out and about and to get lost in books.

JG: As for your rowing for the nationalteam, just how did you fit this extracurricu-lar activity into your academic schedule?Also, speaking of schedules, how have you fityour current community efforts with your“lawyer” schedule? And what are your com-munity activities?

JD: I was blessed with gracious law andbusiness school faculty and administratorsand a gracious employer. I’m sure this gracewas strained on occasion, like the time theUS Anti-Doping Agency showed up toadminister my random drug test while I wasin class, and the deans had to allow theirconference room to be commandeered as atemporary urine analysis lab. Wake Forest’sfaculty and administrators were alsoextremely generous in allowing me to missclasses at the beginning of my 1L and 2Lyears so that I could compete in the annualworld championships that are the qualifyingevents for the Paralympics, and they helpedme arrange my course load so that I couldessentially miss half of the first semester ofmy 3L year to participate in the Paralympics.Womble was also very kind in allowing meto miss many Fridays during my summerclerkship so that I could travel to spendweekends training with my team inPhiladelphia and DC. My wife showed thegreatest grace and patience by permitting usto postpone our honeymoon so that I couldtrain, and in allowing me to use the secondbedroom in our apartment as a home gym.It truly took a coordinated effort to get meto Beijing, and I am very grateful for every-one who helped along the way.

As for community activities, I don’t thinkI am any more involved than most attor-neys, particularly since becoming a father. Iam a deacon at my church and a volunteerfor the Forsyth County Jail and Prison min-istry, where I play guitar for chapel servicesevery few months. I am also a board mem-ber for a young non-profit that my friendsstarted to do economic development workin Uganda. This year I also started teachingpre-trial practice and procedure at WakeForest, which has been a privilege and also a


lot of fun. By limiting my community activ-ities to things I really care about, I havefound that making time has never been amajor problem.

JG: Preparing for trial is exhausting andthe trial of a case even more so! I cannotimagine doing all this without the benefit ofsight.

How do you locate a case or exhibit incourt; how do you pick a jury and how toyou talk to the jury in a “face to face” matter?

JD: As for any lawyer, the key for me iscareful and deliberate preparation. I usetechnology to its fullest when I’m arguing amotion or trying a case. My computer hasspecial software that can read documents tome, so I make sure I have all cases, exhibits,outlines, etc. saved on my laptop whenever Igo to court. I use an earphone so I can readmy notes without my computer reading tothe whole court room. The same computersoftware makes online legal research fullyaccessible, so I can use Lexis and Westlawjust like anyone else. With the proliferationof wireless internet access, including in manycourt houses, there is very little I cannotaccess from my laptop.

Jury interactions are a different animaland something I am still figuring out. I thinkwalking in with a cute dog is a good start. Ialso think that blindness can be a humaniz-ing factor that differentiates me from theother blue and gray suit clad stiffs and helpsthe jury see me as a real person. Rather than

hide my blindness, I have tried to address itin 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 voirdire in one trial, I reminded the jury that“Y’all have seen my four-legged co-counsel,so you know that raising your hand andwaiting for me to call on you isn’t going todo any of us much good.” That elicited achuckle, accomplished the more importantobjective of securing the jury’s cooperationduring the voir dire process, and broke theice so that the jurors could get past myblindness 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 keepthings from becoming too awkward.

This is not to say there have never beenany mishaps. In the above-referenced trial,for example, I was pretty embarrassed at theclose of voir dire by a Batson challenge thatI did not anticipate. I realized, only after theopposing counsel stood up and began pas-sionately arguing his motion, that I had noidea what the racial composition of my jurypool even was, including those who hadbeen excluded. That was a mistake thatmostly resulted from being a rookie, butblindness certainly did not help. In anothertrial, one of my colleagues walked an exhib-it up to the witness stand while I was cross-

examining an expert. After what I thoughtwas a pretty effective cross based on theexhibit, I confidently instructed my col-league that he could step down, only torealize when he put his hand on my shoul-der a second later that he had quietlyreturned to our table some minutes earlier.Fortunately, another thing blindness hastaught me is that, sometimes, the only thingto do is enjoy a laugh at your own expense(which is what I did along with the rest ofthe courtroom).

JG: Modern day computer science mustbe a great help (necessity?) to you, but ittakes more than a computer to try a case.Exactly how does the computer work foryou? What are the computer programswhich allow you “to see” what you are doing?

JD: The main computer program I use iscalled JAWS. In essence, it speaks every-thing that is written on the screen, includ-ing documents, websites, email, etc. Itenables me to perform legal research anddraft documents the same way any otherlawyer would. Another crucial asset I’vebeen fortunate to have is an excellent sup-port staff, including the assistants I’veworked with and our firm’s team of wordprocessors. Together, they scan and convertpaper documents or electronic documentsthat 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’vebecome dependent upon, like many others,is my iPhone and its built-in accessibilitysoftware. I use my phone for everythingfrom emails to reading to looking up casesand 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 requiresthe faithful to care for the “widows andorphans”. You and your wife adopted twochildren from Ethiopia and now are expect-ing a biological child. Before the adoption ofthe children, did you have any special ties toEthiopia? Please tell us about fatherhood andyour family life.

JD: My wife and I felt called to adoptionbefore we knew one another, and we dis-cussed adoption early on in our relationship.Within our first year of marriage, we decidedto adopt first and try for biological childrenlater, which we thought would enable us andour extended families to focus on connecting

C O N T I N U E D O N P A G E 5 3

22 FALL 2014

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

24 FALL 2014

The rusty neglected hinges made a squealas Frankie yanked open the sagging rough-board rectangle that served as a door intoUncle Otha’s seven room barn. You had tosquat and kinda crabwalk to get into theopening of any tobacco barn, and this onewas especially low. The smaller and lower thedoor, the less heat you’ll lose, and this tall ofa barn needed all the heat it could hold.Frankie stepped sideways over the high silland ducked into the barn.

His steps caused dust to rise from thefloor of tobacco talcum, making the air richwith the intoxicating smell of flue-curedtobacco. Dust particles hung suspended inthe shafts of sunlight leaking through thechinks in the walls, narrow strips of visibilitycrisscrossing the shadows up high in thebarn, making a ladder of light that funhousemirrored the set timbers used to hang thesewn sticks of just-picked tobacco; they tooladdered above across the vast empty spacecreated 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 allof Wake County, but at the time also one ofits tallest structures as well. From the ventwindow at the very top, you could see boththe Knightdale fire lookout tower—lookinglike a project from Frankie’s brother’s Erectorset—and the new Holiday Inn high-rise inRaleigh, which was shaped like a mailingtube with balconies and supposedly copied afamous building in Hollywood. Moreimpressively, from those two buildings youcould unmistakably see the shiny top ofUncle Otha’s barn. Frankie used to bragabout that at school when he was younger,and actually saw it was true once when hevisited Raleigh with his pa. They had takenthe elevator in the hotel to the top floor andlooked 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 usualbarn was only about two stories tall.Conventional wisdom held that the dry heatfrom the flues—literally greenwood fires inground level hearths before the gas companyset up in Wendell—would lessen by the timeit rose much higher, hence failing to dry or“cure” the tobacco hung at the higher levels.Barns were about 16 by 16, and were dividedinto four parallel “rooms.” Frankie was con-fused when he was little because these“rooms” don’t have walls and as such aren’treally rooms at all. Each room was defined bythe ladder of eight timbers crossing from oneside of the barn to the other, each timberabout 30 inches directly above the one belowit and spaced about four feet apart from sideto side. Each level of cross timbers wouldsupport the ends of the long, roughhewntobacco sticks laden with sticky, heavy, ripegreen-gold leaves—the leaves tied on byhand when Frankie was little, but he remem-bered the carnival atmosphere the day his paand uncle came home pulling a brand spank-ing new Holland stitching machine, animmensely labor saving machine part con-veyor belt, part industrial seamstress, andpart magic to Frankie. The loaded stickswould travel on the conveyor through thestooped door to the floor man inside, usuallyboth tall and strong and frequently also thecrew boss, who then handed up one end ofthe heavy tobacco stick—reaching as high ashe could—to one of the hangers clamberingabove. The hangers were agile and strongteenagers who flew monkeylike up and downthe wide-spaced ladder of crosslogs, fillingthe top tier in the first room by squeezing asmany fat, loaded sticks as they could, side-by-side on each level. Good hangers wouldflatten themselves against the wall to force ina few more sticks, cramming the space with

as much tobacco as possible. Then theywould move down a level and start to fill thenext tier. Once that room was jammed fullall the way to the bottom rung, the processwould start again at the top in the next room.

Sometimes a barn monkey would lose hisgrip and drop a loaded stick, making thefloor man dodge, curse, and threaten. Theywere heavy enough to cause serious injury,especially when dropped from on high.Frankie’s pa once said he thought you couldkill a man if you dropped a stick on himfrom the top tier of Otha's barn.

For although you might see a rare sixroom barn, proudly built eight feet wider butno taller by some proud, successful (andsome unsuccessful yet still proud), scratch-dirt farmer—usually placed right by the roadso everyone would see and hopefully drawthe right conclusions of prosperity and ambi-tion—Otha’s barn was a very unique “sevenrooms,” almost twice as high as any other.Oh, the Broadwells claimed an “eight roombarn,” but everybody knew it was really onlytwo four room barns built side-by-side, shar-ing a common wall. And instead of roadside,Otha built his barn tucked back into thetrees behind his house, ostensibly to use thenatural shade for his barn workers, but hav-ing the subsidiary effect of making his barnlook even taller as its sheet metal roof tow-

Seven Room BarnB Y P . R I C H A R D W I L K I N S O N

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

The Results Are In!

This year the PublicationsCommittee of the State Bar sponsoredits 11th Annual Fiction WritingCompetition. Fifteen submissions werereceived and judged by the committeemembers. The submission that earnedfirst prize is published in this edition ofthe 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 ofobvious pride and showmanship.

Otha had hit upon the idea of a tallerbarn when we first got LP gas for the barns.Ignoring the local naysayers—including twoprofessors from NC State who came out atthe request of “concerned neighbors”—Frankie’s uncle dropped a bunch of tallstraight pines one winter and started build-ing his barn the next. (“Goddam engineers,”muttered Uncle Otha.) Using woodstovepipe, he built tall chimneys that rose besideand anchored to the walls, and that carriedheat almost all the way to the top. Andthough technically it still only had four“rooms,” they were very tall. Otha’s barn wasexactly three-quarters taller than most so, ashe figured it, the barn held seven roomsworth of tobacco. Instead of eight hangerlevels, there were 14.

Frankie looked up again at the ladder ofcross timbers and he remembered attempt-ing to climb it while neglected one hot after-noon when he was just six. Using the gaps inthe log walls as toeholds, he made it all theway to the second level before falling andbreaking his arm, landing on one of the sheetmetal covered gas burners installed on thedirt floor of the barn. He tasted some bitter-ness now at that memory, as he not onlybroke his arm, but he also got a whipping forwandering away, and even worse, his panever let him work in the barns when he gotolder. Instead, he was a field worker—hespent all day every day but Sunday out in thehot North Carolina sun all summer long.

Frankie was adept at the manual fieldwork: the plugging and planting; the hoe-ing and weeding; laying endless rows ofirrigation pipe; breaking out the floweringtops and suckers that would limit broadleafgrowth; and “priming,” the term used forharvesting the leaves by hand when theywere at their prime. Yet he wasn’t veryadept at much else. His pa’s attempts toteach him to operate the tractor were disas-trous—he still couldn’t drive. Although anenthusiastic reader, he did poorly in schooland was slow to pick up on things in gen-eral. Mostly ignored in school—by teachersand peers—he had never held any job butfarming right here, and he still lived athome with his ma and uncle. He knew hewas different and it had made him shy andfriendless. It was the main reason why he

spent so much time alone in the barns nowthat they weren’t used.

Despite banishment to the field, that’snot to say the young Frankie never went tothe barns when they were used. For 16 yearshe would accompany his pa in the eveningsafter supper to check on the barns, makingsure the burners were all lit and adjusting theheat to maximize the curing process. Oncrisp fall dawns he would help load the curedtobacco onto a flatbed trailer, the humidityjust right for keeping the leaf in “order”—meaning supple and not brittle—so it couldbe handled. Oftentimes the field handswould ride in on the last trailer of primedtobacco, and hang out in the shade while thebarn hands would sew and load the last ofthe sticks. His first (and only) kiss was in thistobacco barn, the lucky girl the skinny 15year old sister of the barn crew boss. Otha’sbarn was where Frankie came to hide whenhe wanted to be alone; it’s where he came tocry when his brother died, and when his padied. 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 onthe adjoining farm, but they had lost it dur-ing the estate battle after his grandpa on hismother’s side died and his ma’s sister forcedthe sale of everything. (“Goddam lawyers!”cursed Uncle Otha.) They had lived andfarmed with his father’s brother ever since.Frankie knew nothing but farm life: wideopen spaces, trees, animals, and tobacco. Hecouldn’t imagine living anywhere else. Thefarm was his sanctuary, the barn his solitude.He always came here when he was upset, soit felt right to come for one last visit.

The burners were all gone now, scavengedfor scrap metal or used to turn old cut up fueltanks into pig cookers. The log barn had setempty for years, and Frankie suspected hewas the only one who went inside anymore.The barns were no longer used because Othahad switched to metal automated curingsheds in the 80s, a necessary evolution need-ed to use the automated tobacco harvester.The harvester eliminated the need for fieldlaborers, who had gotten harder and harderto find each year. Frankie remembered thevarious groups of workers from over theyears: when he was a child they had alwaysbeen black (“We’re supposed to call themNegros,” sneered Uncle Otha); when he was ayoung teen the blacks didn’t want to farmanymore so his pa hired a bunch of teenagers

from the nearby trailer park (“Watch out forthe white trash stealin’ from us,” growled UncleOtha); and then when the trailer park crewgrew up and drifted away, the farm hiredmigrant workers from Mexico. (“And whenthe crop is in, they’ll go back to where they’refrom!” predicted a smiling Uncle Otha.)

Frankie’s pa had never warmed to hisbrother’s tall barn theories, and usage provedhis caution well placed. It used more gas thantwo four room barns would, and even thengetting a uniform cure was challenging. Mostdays during harvest they would fill two barnswith fat loaded sticks. Eight rooms of tobac-co was plenty of work for one day, especiallywhen you were pacing yourself for eightweeks of that work at six days a week. So intheory a seven room day should be shorter,but it wasn’t. The extra height meant an extrabarn monkey was needed, which meant oneless primer in the field. Fewer primers slowedthe picking; climbing up and down the tallladders with heavy loads slowed the barning.Frankie’s ma would sometimes call the greatold barn Otha’s Folly or the Terrible TobaccoTower, but Frankie noticed she never didwhen Otha was around.

Sadly, this great old barn—in fact thewhole farm—would soon be history. Thelocation of the new outer bypass aroundRaleigh was announced and it was comingright through Otha’s house. (“Goddambureaucrats!” roared Uncle Otha.) Frankiewas visiting the barn one last time as he, hisma, and Uncle Otha cleaned and sorted andreadied to move to some house in a subdivi-sion with a tiny yard. No one was excited orhappy about the move, least of all Frankie.Everything was packed. Today was the lastday any of his kin would live on this spot.The loss left him feeling worse than anythingbefore. The farm was always the one constanthe could count on, even when other stuff lethim down or left him bewildered. Now itwould be gone.

Frankie felt truly lost and aimless. Hisfeelings of grief and despair had grown overthe last years, the bad events coming oneafter the other, no gap in between longenough to have mourned and evolved, butinstead each tragedy overlaying the last untilassimilating all into a single giant chest-press-ing weight he never seemed to shake. Losingthe farm wasn’t just the proverbial last straw,but instead was like being crushed by a giantbale of hay dropped from a plane. He didn’tknow what to do.


His ma tried hard to convince Frankie touse this opportunity to start a new life, tostrike out on his own. He needed to find ajob. He needed to stop depending on her;she could already see her next few yearswould be spent caring for the aging Otha.(“No goddam drool-chinned nursing home!”raged Uncle Otha.) Even the pastor atchurch had pulled him aside to urge Frankieto let go of the past and move into the future.Assuming he could and assuming he wantedto, Frankie wasn’t even sure how. Where doesone start when starting over?

Frankie looked up at the cross timbers.Now that he was grown, the first beams werehead high, causing him to duck as he movedaround. He tugged on one, feeling itsstrength, and made a decision. Maybe here iswhere you start over. Today would be verydifferent, and not just because he was mov-ing. Today he would have the courage to dowhat escaped him many times since the bro-ken arm. Today he would climb to the top ofthe seven room barn.

The first tier was easy. It was no higherthan standing on the back deck of the house,and it took little effort to kick off the floorand wall and scramble up. He stood on thebeam with one hand holding to a knot in thewall. He realized now that even grown hewould have to climb to the upper room thesame way he had as a child—working hisway up a wall, digging his toes into thechinks between the logs, while pulling up onthe beam of the next tier above.

The second level was where Frankie hadfallen as a child, breaking his arm and ruin-ing his chances of working in the shade. Itdidn’t look that tall at all. He was sure hecould just jump down from here if he want-ed. This was also the log Jeanie sat on whenshe would sneak a cigarette, since she was tooyoung to smoke. She would climb up and sitbent-kneed on the second, with her feet onthe first, leaning against the wall, wronglybelieving her brother the barn boss wasoblivious. Frankie would just as sneakily fol-low her and stand looking up at her as shesmoked. She wore cutoff jeans—the kidscalled them Daisy Dukes—and he tried notto stare at her legs. They hardly ever said any-thing, instead sharing a quiet moment in theshade, each wondering what the other waswondering. On the last day of harvest of thelast season he would ever see her or herbrother, she tossed her butt down into thedirt as always, but when she hopped down

Jeanie had walked right up to Frankie andkissed him hard, and had then ducked outthrough the door. He could still feel thewarmth of her lips, the mash of his lipsagainst his teeth, and the complete vacuumthat immediately followed. He looked upinto the shadows and dust for a momentlonger than the kiss, and then scrambled upto the third beam and kept climbing.

Otha had fallen from about the fifth levelwhen Frankie was 16, the suspected cause thedrinking of “apple cider” that Otha kept in abig barrel hidden in the loft of the regularbarn. He broke both wrists, just before har-vest, so he was completely useless when theyneeded him the most. (“Come here and helpme, Frankie! I can’t even wipe my own damnass!” bellowed the double-casted Otha.)

Frankie climbed up onto the seventh levelof cross beams. Now he was nervous, for itseemed a long way down. He rested here fora while at the halfway point, looking up andlooking down. He was being flooded withmemories and emotions, all of it making himshaky. He had never climbed this high any-where, much less in the barns—he wasalways too scared. Heck, he didn’t even likethe second floor balcony at North Hills Mall.He took a big deep breath and started toclimb up to the next logs.

The tenth row of beams held a goodmemory for him. It was from here that hisolder brother pissed down on top of thehead of one of the trailer park boys, a trou-blemaking bully called “Rooftop” because ofthe stiff shingle of hair that stuck straightout from his forehead. He had cornered ayoung Frankie in the barn and was teasingand pushing him around, unaware thebrother was hanging out up high. “Francis,Francis,” he had sing-songed until he felt thefirst splash and unwittingly looked straightup into the yellow stream. Rooftop ran fromthe barn cursing and crying. He never cameback. The good memory faded though,since Frankie’s brother died some years laterin Iraq. (“Goddam politicians! ” wailed UncleOtha.) Frankie missed his brother some-thing fierce.

The memory of Rooftop brought a floodof others. If Frankie had ever had any“friends,” it was a handful of the dozens offield workers who had come and gone overthe years. Like DJ, the big black kid whodidn’t talk like any of the others—black orwhite—but instead sounded like the booksFrankie liked to read. DJ would tell Frankie

he could be whatever he wanted when hegrew up. DJ planned on going to college andbeing a lawyer. Or Michael and Billy, the twocut-ups from the trailer park who would pullpranks like putting garter snakes in the baccatrailer to scare the girls at the barn, or wouldoffer Frankie a dollar to eat a fat, juicy tobac-co worm. Or Miguel, the migrant workerwho had claimed to not speak or understandany English until the day Frankie’s pa cameby with an old TV in the back of the truck.He was giving the migrants the set to put inthe ancient tenant farmer’s shack where theyall lived. Miguel had taken one look at theTV and blurted out, “Is it color?” This hadcaused Frankie to fall down laughing, whichmade the other workers laugh too. After that,he and Miguel always primed side-by-siderows, and Miguel would tell him stories oflife in Mexico.

There had been a few others like theWilson boys and the Baker brothers, maybenot friends but at least friendly. However,none of the former workers had ever stoppedby the farm over the years, and after theswitch to automation, there were no morecrews. After graduation from high school,Frankie knew not much more than the isola-tion of the farm, except for sporadic trips tothe First Baptist Church with his ma and theWendell tobacco warehouse with his uncle.

Frankie resumed moving slowly up thewall. He didn’t pause anymore for fear hewould lose his will to rise any further. Hepulled and reached and climbed, and finallykicked up onto the last timber. This was the14th tier, but technically the first to be filledwith tobacco. Even though it was a nice day,the top of the barn was sermon hot andstuffy. 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 wasalmost unbearable to the hangers laboring init. Here, from the side, the barn monkeycould get some fresh air by opening a smallwooden vent built into the wall—you lifteda swinging hook from a bent nail and pushedthe door outward. Except the door hadswelled eons ago and was always stuck, soyou had to beat it open using your fist like ahammer. Holding on tightly with one arm,he banged open the vent.

He blinked in the sudden blinding floodof sunlight. Through the opening, Frankiecould see out over the trees, just as UncleOtha had planned. He could see part of the

26 FALL 2014

old farmhouse where six generations of hisfather’s family had lived. The view hadchanged over the years, with the fire towernow long gone and Raleigh full of tall, gener-ally square-cornered buildings. Most of theneighboring tobacco fields and log barns werealso gone, they and the forests buried undercookie-cutter subdivisions. Yet, even withfarms turning into neighborhoods, and cross-roads country stores lost to bigger IGAs oreven bigger Kroger shopping centers, it stillwas a vast vista of trees and open space. Thebypass would change that, for good or ill.

For Frankie, though he had never beenhere, the top of the seven room barn was theplace that had affected his life the most.Frankie’s father fell from right here, openingthis stupid little door, losing his balancewhile banging on it with his fist. He crackedhis skull on one of those stupid little gasburners at the bottom. He last saw his fatherin the Intensive Care Unit at WakeMemorial, his head completely wrapped ingauze, a stupid little tube leading from onecorner of his mouth, a trickle of blood drib-bling from the other. (“Goddam doctors,”sobbed Uncle Otha.) Nothing had ever beenthe same again.

Frankie had never imagined being thisfar off the ground. The floor, even withoutthe old jets, looked deadly simply because itwas so far down. Sliding his hands out ontothe log and pushing off the barn wall withhis feet, he edged out onto the beam thatonce held hundreds of pounds of ripe, fattobacco, letting it settle into his armpits ashis torso hung half off half on and his legsdangled below.

Frankie hung there using his muscles andbody weight to achieve a state of suspendedanimation. It took little effort to remain inbalance. It felt like floating. He turned hishead and looked out of the little windowover the trees and let his memories float aswell: he thought of his ma and his pa and hisUncle Otha; the loss of one brother and notone but two farms; the smell of cured tobac-co and unwashed workers; the long, hotsummers and long tanned legs; loud musicand loud auctioneers. He could hear thesinging of the field crews working their waydown the long rows, the steady rumble of thetractor and trailer slowly keeping pace besidethem. He felt for a moment the peace that healways felt during the morning and after-noon breaks, sitting in the shade, listening tobirds 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 shadeand into the heat!” roared Uncle Otha.) Hecould feel the scratch of burlap, the sticky oftobacco resin, the pain in his bent loweredback. He could taste the sting of sprayedchemicals, of sweat pouring down his face, ofcold chicken soup eaten directly from thecan at the store during lunch when all thefarmers would congregate for 30 minutesrepeating the same tired phrases about theheat, the humidity, the crop, and the prices.He could sense the buzz of nicotine seepinginto his pores from the black gum staininghis forearms after a long day of priming. Hethought of highways and houses, familiesand funerals, the things he would never haveand the things he would never have again.Loss, longing, helplessness, aimlessness,despair, and bittersweet nostalgia washedover Frankie, just like the acrid papery smellof decades of cured tobacco. He now had nopast and he could see no future.

Frankie thought of all of these things ashe swayed on the log and floated in the warmstill air. He suddenly and sharply realized,maybe with a clarity of reason he had neverexperienced, that he did indeed carry anawful heavy burden with him, a burden thatprevented him from moving forward, frombeing happy. And dammit! he was tired offeeling that way. He looked down at theshadowy dirt floor. He looked at the roughlog walls. He looked out the window atbright sunshine and what would be no more.He even looked up at the underside of the tinroof, never shiny underneath but not on topanymore either, noting the small pinholesand spreading stains of rust. Frankie lookedat everything and nothing, felt everythingand nothing, tasted and heard and smelledeverything and nothing. He was beingcrushed by his feelings, His Feelings, HISFEELINGS. Something drastic had tochange, and then Frankie decided that thebest way for him to get on with life was tosimply let it all go. And so he did.

Frankie let go. n

P. Richard Wilkinson closed his law practicein 1998 to take a two year travel sabbatical. Hehas since roamed the American West fightingwildfire, rafting Class V rivers, climbing10,000'+ mountains, and skiing big lines. Hewill begin his return home to NC in 2015, pro-jecting the journey will take 12 to 18 months(depending on Alaska).


Poetic Justice

The following poems are excerpts from the bookPoetic Justice, a collection of vignettes from life inthe practice of law rendered as humorous poems,written by Charlotte attorney James DuPuy andaward-winning writer and editor ML Philpott.A portion of the proceeds from the sale of the bookgo to benefit WomensLaw.org. For more infor-mation, see poeticjusticethebook.com.

The Call Not TakenWith 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 RainmakerWith thanks for the inspiration to ElizabethBarrett 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 mostdays. 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 thepraise. 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

28 FALL 2014

Irecently had an opportunity totalk with Robert (Bert) C.Kemp III, a board certified spe-cialist in state criminal law prac-ticing in Pitt County. Bertattended the University of

North Carolina at Chapel Hill, earning anundergraduate degree in economics, andsubsequently received his law degree fromWake Forest University.Following graduation he spentseveral years practicing both gen-eral litigation and criminaldefense before accepting a posi-tion as an assistant publicdefender in Pitt County. He wasappointed chief public defenderin June 2007 and currentlysupervises 13 attorneys in thatoffice. Bert is also a judge advocate, hold-ing the rank of lieutenant colonel in theNC National Guard. Bert became a boardcertified specialist in 2005, and wasappointed to the Criminal Law SpecialtyCommittee in 2013. His comments aboutthe specialization program and its impacton his career follow.Q: Why did you pursue certification?

I had been in private practice as a crim-inal defense attorney when I accepted theposition of assistant public defender in PittCounty. At the time, several of my clientsviewed that change as a demotion, akin toa resident doctor or some kind of trainingposition. They expressed concern for meand were hopeful that I would get myselfout 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 veryseriously. I wanted to prove to clients, col-leagues, and mainly to myself that I couldaccomplish this goal. I also knew it wouldbe a good opportunity to refresh myknowledge 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 alsoreviewed materials from several continuinglegal education courses. The School ofGovernment has a wealth of outstandinginformation available online, and I certain-ly took advantage of those resources. As anassistant public defender I worked mainlyon high-level felonies, including robberiesand sex offense cases. I viewed having to

study as a great opportunity tore-learn some items I had for-gotten. I especially reviewedrecent case law and spent timeexamining subjects I did notroutinely encounter in my dailywork. Q: Has certification been help-ful to your practice?

The certification has shownothers that this is a target that can beachieved. One of my personal goals movingforward is to promote certification withinthe public service arena. I believe that it iscritical to our judicial system to retainqualified lawyers in both public defenderand prosecutorial positions, as well as thoseworking for Legal Aid. Many of the lawyersthat I work with are [de facto] specialists intheir area and deserve, not only a monetaryraise, but a high level of recognition fortheir dedication. Board certification is oneway 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 Boardof Legal Specialization recently launched anew program with NC LEAF [LawyersEducation Assistance Foundation,ncleaf.org] to provide financial scholarshipsto cover the certification application feesfor state prosecutors, public defenders, andnon-profit public service attorneys. I thinkthis type of program and the John R.Justice program [ncleaf.org/content/john-r-justice-jrj-program-summary] are criticalcomponents to retaining quality publicdefenders and prosecutors. For the past few

years, pay increases have been few and farbetween for these lawyers. Therefore, everylittle bit helps to recognize their dedication.Q: How does certification benefit yourclients?

Few ways exist to distinguish yourself asa dedicated and competent lawyer.Certification is one way that I can demon-strate to my clients what this practicemeans to me, and give them the comfortthat they have been assigned a "real"lawyer. As the public defender for PittCounty, I have built an office of good andknowledgeable employees who have a call-ing for this work. I want all of our clientsto recognize the quality and commitmentof their attorneys.Q: Are there any hot topics in your spe-cialty area right now?

One of the biggest issues in criminal lawright now involves the collateral conse-quences associated with a conviction, suchas in domestic violence cases, DWIs, andsex offenses. Our work as public defendersencompasses all of these areas. DWI lawhas become so complicated—with the con-sequences for clients being so serious—thatit really takes a specialist’s depth of knowl-edge and experience to be able to under-stand and properly manage all of the issuesinvolved. Other hot topics include immi-gration ramifications and the possibleupcoming change in juvenile delinquencylaws. If the juvenile age is indeed raised incertain cases, more proceedings will behandled 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 incriminal law. The more information madeavailable to the public, the better. In gener-al, clients today have greater access to infor-mation, thereby enabling them to makeinformed choices. However, I, as a publicdefender, am appointed to represent my

Profiles in Specialization—Robert C. Kemp IIIB Y D E N I S E M U L L E N , A S S I S T A N T D I R E C T O R O F L E G A L S P E C I A L I Z A T I O N

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

Kemp


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 bythe board to the initial Workers’ Compensation Law Specialty Committee where she served for six years; the committee wascharged with the development of the standards for the specialty and the drafting of the first workers’ compensation law specialtyexamination; and, although specialty certification in this practice area may appear to be more advantageous to plaintiffs’ lawyersthan to defense lawyers, Jeri became a champion for board certification, recognizing the significance of a workers’ compensationlaw 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 andtalent—over the course of nine years, missing only one board meeting; Jeri’s personal experience with certification helped theboard to make informed policy decisions about the certification and recertification of lawyers, the allocation of resources, theemployment 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 ofcertification and recertification, and, as a consequence of her experience with difficult appeals, she was appointed to chair acommittee 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 practiceareas 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 anniversaryof the North Carolina State Bar’s specialization program; and

WHEREAS, Jeri’s consummate professionalism, thoughtful and diplomatic approach to difficult issues, championshipof the specialization staff, and unwavering support of board certification for lawyers as the hallmark of professionalism, will bemissed 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 LEGALSPECIALIZATION:

That the members of the board hereby express their appreciation and gratitude to JERI L. WHITFIELD for her outstandingdevotion and service on the North Carolina State Bar Board of Legal Specialization.

client. Therefore, the client has no choicein their attorney, which makes certificationeven more important in developing a highlevel of trust and comfort between theattorney and client. Q: How does certification benefit the pro-fession?

Certification builds trust and credibilitywith the clients, which in turn benefits theprofession. It also creates a collegialityamong peers, including adversaries, as itpromotes a focus on professional practicerather than monetary gain. Anything wecan do as lawyers to further our knowledgeand hone our skills will also improve thepractice of criminal law for all involved.

Q: How do you see the future of special-ization?

I think the program will continue toexpand as more attorneys will see it becom-ing almost a necessity. Providing a legalspecialty certification program is one waythat the State Bar shows the public that it ismaking an investment in the continuingeducation and growth of attorneys. n

For more information on the State Bar’sspecialization program, visit us online atnclawspecialists.gov. To donate to the NCLeaf Scholarship Fund, please send a check to:NC LEAF - Specialization Scholarship, 217E. Edenton Street, Raleigh, NC 27601.

NO MORE THAN 24!

Please return every phone call, email orother form of communication from aclient within 24 hours. The number onecomplaint against lawyers each year atthe NC State Bar is, “my lawyer will notreturn my phone calls or communica-tions.” We can end these complaints—itwill just take a little effort.

—Mel WrightExecutive Director, The Chief Justice's

Commission on Professionalism

30 FALL 2014

When we help a client fix a problem orreach a desired outcome, we often feel astrong sense of personal and professionalachievement and satisfaction. Researcherscall that experience “compassion satisfac-tion.” Compassion satisfaction is cruciallyimportant because it sustains us through thebad days—the days when we don’t achievethe desired outcome or when a client has noviable good options. For many of us, muchof our career is spent assisting people in ter-ribly difficult situations, and our ability toeffect real change or outcomes is far morelimited than we ever imagined it would be.

With the ever increasing specialization ofthe profession, today most lawyers deal witha very high volume of the same kind ofclient distress day in and day out. It is notuncommon, for example, for a workers’comp lawyer to have anywhere from 250-400 open cases at one time. With a highcase load and nonstop exposure to the sametype of client distress, over the course of a

career the bad days can begin to outweighthe good ones. When that happens, we maydevelop a condition known as compassionfatigue. If left unaddressed, compassionfatigue can lead to secondary trauma andburn out.

Compassion fatigue is defined as thecumulative physical/emotional/psychologi-cal effects of continual exposure to traumat-ic or distressing stories/events when workingin a helping capacity where demands out-weigh resources. The two largest factors thatcontribute to developing compassionfatigue are 1) high volume of workload and2) exposure to client distress and trauma.Unfortunately, all the best legal training inthe world cannot turn off our mirror neu-rons, which exist in that highly-evolved partof our brain that respondsneurologically/emotionally to other people’sdistress as an involuntary response (evenwhen we might not have any consciousawareness of an emotional response). The

symptoms of compassion fatigue can oftenmimic those of depression or anxiety, butthere are a few key differences (and depres-sion and anxiety are often symptoms ofcompassion fatigue).

Behavioral symptoms:• absenteeism from work• anger and irritability with coworkers,

clients, opposing counsel, judges, family,and friends

• indecisiveness; an impaired ability tomake 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 athome, or a sense of dread of something badhappening 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 SolversB Y R O B Y N N M O R A I T E S

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

Most 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 fromothers (for example, either intentionally dis-tancing from friends and family or simplyfeeling isolated in a group—“When I gethome, I feel like I am from another planetbecause 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 secondarytrauma, the lawyer or judge has developed apost-traumatic stress disorder (PTSD)response to the day-to-day activities neededin his or her job and in life. The PTSDresponse results not from some personaltrauma the lawyer once suffered, but fromthe vicarious trauma he or she is exposed towhen helping clients.

Judges in particular are at risk for devel-oping compassion fatigue, especially districtcourt judges. And lawyers in these practiceareas are considered particularly at risk fordeveloping 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 awarenessand lifestyle choices. The problem, ofcourse, is that many of us are entrenched inhow we operate on a day-to-day basis, andsome of these lifestyle suggestions seemunattainable. The LAP has helped so manylawyers bring their lives back into balancewho are suffering from compassion fatigue.

Listed below are some suggestions that atfirst blush might seem minor, but have thegreatest impact.

• Rigorous exercise three to four times aweek. Our bodies and brains store a greatdeal of pent-up energy from the stresses weencounter in work and life. Regular exercisedoes more than release endorphins,although that is a great benefit. I am a bigadvocate 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 hotyoga classes a week I seem to be fine. WhenI 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 viableoptions. Anything that moves your heartrate into a 65-85% of max range willwork—it needn’t be a high impact activity.

• Finding ways to laugh and have realfun and connection. Our emotional balancein life depends in part on the stimulus hit-ting our mirror neurons. When you recalltimes you felt really connected to someoneor a group of people, there was somethingvery positive happening in your brain. Thatfelt sense of connection is an important toolfor emotional resilience. Sometimes a bellylaugh that brings tears to our eyes is morerestorative than two years of talk therapy. Sofind people who make you laugh and towhom you feel a deep sense of connectionand spend time with them.

• Resume or develop hobbies. Usually aswork and time demands increase, the firstthing we abandon are hobbies and activitiesthat seemingly serve no useful purpose.These activities are precisely the kinds ofthings that restore emotional resilience.Doing something you enjoy simply becauseyou enjoy it balances the chemistry in yourbrain and goes a long way toward balancingour perspective when faced with difficulties.Find those things you abandoned—or thosethings you’ve always wanted to do but havenever gotten around to doing—and beginto 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 andseparate 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, thosereactions have less power to dictate ourbehavior. We learn to pause when agitatedor doubtful instead of reacting to the agita-tion or doubt.

Compassion fatigue symptoms are nor-mal displays of stress resulting from theproblem solving and caregiving work weperform on a regular basis. While the symp-toms can be at first subtle if not addressed,they can eventually become disruptive toboth our work and home life. An awarenessof the symptoms and their negative effectscan lead to positive change, personal trans-formation, and a new emotional resilience.Reaching a point where we each realize wehave control over our own life choices takessome time, dedication, and hard work.There is no magic involved. There is only acommitment to make our lives the best theycan be. n

Robynn Moraites is the director of theNorth Carolina Lawyer Assistance Program.

The North Carolina Lawyer AssistanceProgram is a confidential program of assistancefor all North Carolina lawyers, judges, andlaw students, which helps address problems ofstress, depression, alcoholism, addiction, orother problems that may lead to impairing alawyer’s ability to practice. If you would likemore information, go to nclap.org or call:Cathy Killian (for Charlotte and areas west) at704-910-2310, Towanda Garner (in thePiedmont area) at 919-719-9290, or RobynnMoraites (for Raleigh and down east) at 704-892-5699.


Professional Quality of Life

Compassion Satisfaction Compassion Fatigue

Secondary TraumaBurnout

By Beth Hudnall Stamm PhD, et. al.

32 FALL 2014

On May 2, 2014, theNorth Carolina StateBar Board ofP a r a l e g a lCertification held anevent to honor

North Carolina certified paralegals (CPs)and to express appreciation to CPs for theircontributions to the new North CarolinaState Bar headquarters. The event was heldat the new headquarters and consisted of afree three-hour continuing paralegal educa-tion (CPE) program followed by a cateredreception. Over 200 guests attended theevent.

Shelby Benton of Benton Family Law, aNC State Bar councilor from the 8thJudicial District and current member of theBoard of Paralegal Certification, presentedat the CPE program. Ms. Benton, a certifiedfamily law specialist who practices in WayneCounty, provided an overview of socialmedia and how it can be used by paralegalsto help lawyers investigate cases, discoverelectronic evidence, and better representtheir 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 aparalegal for Levine & Stewart in ChapelHill and currently serves on the Board ofParalegal Certification. She is also the cur-rent president of the North CarolinaParalegal Association and an adjacent pro-fessor for the paralegal certificate programat Central Piedmont Carolina CommunityCollege.

Alice Neece Mine presented the ethicsportion of the CPE program. Ms. Mine isthe assistant executive director of the NorthCarolina State Bar. In this capacity she isstaff counsel to the Ethics Committee anddirector of the Board of ParalegalCertification.

After the CPE presentations, boardchair Gray Wilson welcomed the certifiedparalegals and recognized NC State Barofficers, former and present members of theBoard of Paralegal Certification, membersof the Paralegal Certification Committee,


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

Celebrating Certified ParalegalsB Y J O Y B E L K

NC State Bar Foundation Chair John McMillan and NC State Bar Board of ParalegalCertification Chair G. Gray Wilson.


IncomeUnfortunately, we must report that the

income from IOLTA accounts continues todecrease as many banks are recertifyingtheir comparability rates at lower levels. In2013, income from IOLTA accountsdeclined by 9% and was under $2 millionfor the second year in a row, which had notpreviously happened since 1994. However,our total income, which received a boostfrom two cy pres awards during 2013 total-ing over $650,000, was $2.4 million.Income from participant accounts throughthe first quarter of 2014 decreased byanother 5%.

GrantsCurrent Grants. Beginning with 2010

grants, we have limited our grant makingto a core group of (mainly) legal aidproviders. Even with that restriction andusing over $2.5 million in reserve funds,grants have dramatically decreased (by over40%). For 2013, we were able to keepgrants steady at the 2012 level of $2.3 mil-lion without using any additional fundsfrom reserve because of a large cy presaward received in 2012. We were also ableto add funds to our reserve, bringing it tojust under $1 million. The reserve fundsand the additional income from cy presawards received in 2013 allowed thetrustees 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 grantcycle we will implement new grant softwarethat is already in use in three large IOLTAprograms in other states. The new softwarewill allow applicants to apply online andsubmit all necessary documents throughthe system, and allow staff and trustees toreview applications through the system.Further, all narrative and statistical report-ing and tracking of grantee outcomes willoccur within the system, allowing staff togenerate 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’sCommission on Professionalism and theNC Equal Access to Justice Commission.

State FundsIn addition to its own funds, NC

IOLTA administers the state funding forlegal aid on behalf of the NC State Bar.Total state funding distributed for the 2013calendar year was $3.5 million, decreasedfrom just under $6 million in 2008 due toreductions to both the appropriated fundsand the filing fee allocations. The statebudget adjustments for 2014-15 eliminat-ed the appropriation for legal aid work(currently $671,250). Though the pro-posed Senate budget had also eliminatedthe Access to Civil Justice funding fromcourt fees (~$1.8 million), that fundingwas continued in the final budget, with sig-nificant additional reporting requirementsfor Legal Aid of NC. The Equal Access to

Justice Commission and the NCBA con-tinue to work to sustain and improve thefunding for legal aid.

IOLTA Leadership The State Bar Council appointed Ed

Broadwell and Charles Burgin as chair andvice-chair of the NC IOLTA Board ofTrustees for 2014-15. Broadwell is retiredchairman and CEO of Home Trust Bankin Asheville, and has served on the board ofthe American Bankers Association (2007-09) and the NC Bankers Association(1976-78 and 1980-82), including servingin 1980-81 as chair. Burgin, a former NCBar Association president, is retired fromprivate practice in Marion. Both haveserved as NC IOLTA trustees for a num-ber of years, and their continuity andknowledge of the NC IOLTA programand its grantees will be particularly valuable


I O L T A U P D A T E

Income Outlook Remains Bleak for Near Future

Though in difficult times, NC IOLTA reaches its 30th year in 2014. NC State Bar officers andIOLTA trustees recognized the milestone at the April board dinner. Edward C. Winslow III, JohnB. 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.

34 FALL 2014

DisbarmentsDonald Lively of Raleigh surrendered his

law license and was disbarred by the State BarCouncil. Lively was administratively sus-pended in 2010 for failing to attend manda-tory continuing legal education. During thesuspension he practiced law, collected fees,and misrepresented his professional status tothe court, other attorneys, his clients, andthird 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 paytaxes, and abandoned her law practice.

Richard Z. Polidi of Raleigh surrenderedhis law license and was disbarred by the WakeCounty Superior Court. Polidi receivedapproximately $16,000 in settlement for aclient. Although Polidi knew his client hadassigned the right to those funds to a thirdparty, he used the entrusted funds for his ownbenefit and for the benefit of the client with-out the third party’s authorization.

Suspensions & Stayed SuspensionsThe DHC suspended William T.

Batchelor of Wilmington for three years. TheDHC found that Batchelor charged and col-lected a clearly excessive amount for expenses

and mismanaged his trust account in a varietyof ways. After serving one year of the suspen-sion, Batchelor may apply for a stay of thebalance upon compliance with numerousconditions.

George Rexford (Rex) Gore of Shallotte isa former elected district attorney. Gore agreedto increase an assistant district attorney’s com-pensation by approving false travel reim-bursement claims the ADA submitted to theAdministrative Office of the Courts. Heapproved 63 travel claims totaling over$14,000 for mileage the ADA did not incur.Gore pled guilty to the misdemeanor offenseof Willful Failure to Discharge Duties. TheDHC suspended Gore for four years. Gorereceived credit toward the satisfaction of thefour-year suspension for the time since thecourt suspended his law license in August2013. After serving two years of the suspen-sion, Gore may apply for a stay of the balanceupon compliance with numerous conditions.

In 2012, Roydera Hackworth ofGreensboro was suspended by the DHC.Before she was suspended, Hackworthengaged in the unauthorized practice of lawby representing her nephew in a personalinjury case in Alabama, where she was notlicensed. After she was suspended by theDHC, Hackworth continued representing

her nephew. She also made misrepresenta-tions to the Grievance Committee. TheDHC suspended Hackworth for five years.The suspension runs concurrently with thesuspension imposed in 12 DHC 3.

Mary Susan Phillips of Wallace neglectednumerous clients and did not respond tonotices from the clerk of court to file estateaccountings. The DHC suspended her forthree years. After serving nine months of thesuspension, Phillips may apply for a stay ofthe balance upon compliance with numerousconditions.

Asheville attorney Julia Leigh Sitton pledguilty to misdemeanor obstruction of justice.Sitton was an employee of the Bev Perduecampaign. Sitton agreed that a campaigncontributor could pay her an extra $2,000 permonth 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 campaigncontributions under N.C. Gen. Stat. § 163-278.13 and allowed the campaign to avoidreporting the payments on campaign financereports 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 balanceupon compliance with enumerated condi-tions. Sitton received credit for the time shevoluntarily abstained from the practice of lawfollowing her conviction.

CensuresRonald E. Cooley of Hillsborough was

censured by the Grievance Committee.Cooley failed to attend a deposition for hisclient, did not communicate with his clientabout discovery requests, did not complywith discovery obligations, did not ensureproper service on an opposing party, andmade false statements to his client.

The Rowan County District Court cen-sured Tiffany Dawn Russell of Durham. Thecourt concluded that Russell engaged inunprofessional behavior and willfully failed to

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

Lawyers Receive Professional Discipline

Don’t Miss ImportantState Bar Communications

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

comply with Rule 12 of the General Rules ofPractice for the Superior and District Courts.Russell gave notice of appeal.

ReprimandsThomas D. Blue Jr. of Raleigh was repri-

manded by the Grievance Committee. Bluewas assigned by his law firm to supervise anonattorney assistant’s trust account recordkeeping. Because Blue failed to ensure theassistant was conducting proper reconcilia-tions, the firm did not discover an error on aclient ledger that occurred in November2010. As a result of the undiscovered error,the firm over disbursed to the client 14months later. The firm finally discovered theoriginal error and the overdisbursement inAugust 2013. The Grievance Committee rec-ognized several mitigating factors.

The Grievance Committee reprimandedKristen 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 reprimandedby the Grievance Committee. Jetton’s directsolicitation letters contained false and mis-leading statements, promised results thatcould not be guaranteed, and compared hisservices to those of other lawyers.

The Grievance Committee reprimandedChristopher Lane of Clemmons. Lane agreedto serve as “Of Counsel” to a foreign law firmand facilitated the firm’s unauthorized prac-

tice of law in North Carolina. Lane also madefalse or misleading statements to a client ofthe foreign firm.

The Grievance Committee reprimandedRaleigh lawyer W. Andrew LeLiever.LeLiever did not timely comply with bank-ruptcy court orders, did not appear at courthearings regarding his noncompliance, andtold the bankruptcy trustee that he would notpay over funds in his possession that belongedto the bankruptcy estate without a courtorder. LeLiever also committed a number oftrust account violations, including failing toreconcile his trust account quarterly, failing tomaintain client ledgers, commingling hisown funds with entrusted funds, and usingimproper methods to disburse funds from histrust account.

Jennifer Moore of Asheville was repri-manded by the Grievance Committee.Moore made misleading statements to theState Bar, neglected her client’s interests, anddid not take appropriate steps to protect theclient’s interests when she withdrew fromrepresentation.

The Grievance Committee reprimandedClaire J. Samuels of Charlotte, who arguedthe merits of her client’s case in emails to thejudge and her clerk.

Antoinette Van-Riel of Winston-Salemwas reprimanded by the GrievanceCommittee. Van-Riel charged clearly exces-sive fees, did not communicate with herclient, did not participate in the State Bar’s

mandatory fee dispute resolution program,and did not respond to the GrievanceCommittee.

Karen Wright of Shelby was reprimandedby the Grievance Committee. Wright neg-lected her duty to settle the estates of herclients’ parents, did not keep the beneficiariesreasonably informed about the statuses of theestates, and did not promptly comply withthe beneficiaries’ reasonable requests forinformation.

ReinstatementsDouglas T. Simons of Durham surren-

dered his law license and was disbarred by theState Bar Council on April 15, 2005. Simonsadmitted that he misappropriated at least$300,000. On March 27, 2014, a panel ofthe DHC recommended that his petition forreinstatement be denied. Simons’ appeal tothe State Bar Council is pending.

In November 2007, Ralph T. Bryant ofNewport surrendered his law license andwas disbarred by the DHC for misappropri-ating entrusted funds totaling $64,847.Bryant petitioned for reinstatement. OnJune 12, 2014, a panel of the DHCannounced its finding that Bryant hadreformed, but that his reinstatement wouldbe detrimental to the integrity and standingof the bar, the administration of justice, orto the public’s interest and recommendedthat his petition for reinstatement be denied.An order has not yet been entered. n


Paralegals (cont.)

and members of the Item WritersCommittee in attendance. He also recog-nized John McMillan, chair of the NorthCarolina State Bar Foundation, and othermembers of the foundation in attendance.Prior to the construction of the new StateBar headquarters, the foundation was cre-ated to receive donations of funds for theenhancement of the new building. Thatinitiative was kickstarted in 2009 when theBoard of Paralegal Certification, upon therecommendation of the paralegal membersof the board, gave half a million dollars forthe construction of the building.

Mr. McMillan presented Mr. Wilsonand the Paralegal Certification Programwith a beautiful memory book that chron-icles the construction of the new headquar-

ters. Champagne glasses were passed and atoast was made in appreciation of certifiedparalegals for their dedication to and finan-cial support of the State Bar.

After the toast, everyone was treated toa catered reception. The decorations andfood were provided by Savory Fare ofDurham. Guests were given tours of thenew building and art collection. The tourended with a visit to the first floor“Members Suite” where a plaque com-memorating the contribution to the build-ing hangs. The reception provided theopportunity for seasoned and newly certi-fied paralegals to network and visit withold and new friends. It was a memorableand successful event. n

Joy Belk is the assistant director of theParalegal Certification Program.

36 FALL 2014

On the next page you willfind a Trust AccountReconciliation Sheet,which was designed toassist lawyers with their

quarterly three-way reconciliations. Rule1.15-3(d)(1) requires that lawyers completea three-way reconciliation at least quarter-ly; however, the State Bar recommends thatlawyers perform this task on a monthlybasis. We have designed these instructionsto make it as simple and clear as possible tocomplete your reconciliation. The numbersand sections in these instructions corre-spond to the numbers and sections on thereconciliation sheet.

InstructionsGeneral InformationYou will note that you must complete a

separate form for each trust account. Manylawyers encounter problems because theytry to combine all entrusted funds into onereconciliation regardless of whether theyare held in separate accounts. You must alsoattach the listed documents in order forthis to be a proper three-way reconciliation.

Reconciliation of Lawyer’s TrustAccount Records

1. Enter the total of positive clientledger balances as of the cut-off date on thebank statement. This includes any admin-istrative funds ledger or firm funds ledgerthat 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, explainthe reason for the negative balance andshow 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 thesame cut-off date on all documents isimperative to avoid mismatched numbers.

Bank Statement Reconciliation

3. List the ending balance as shown onthe bank statement. On the next line listthe deposits that have yet to appear on thebank statement (probably because theywere made at the end of the month). Youshould provide a list of these outstandingdeposits and note the number of thesedeposits in the provided line. Do the samefor outstanding/uncleared checks. Take thistime to examine the list of outstandingchecks and to investigate why those checkshave not cleared.

4. Add the outstanding deposits to theending balance and subtract the outstand-ing checks to find your Subtotal.

5. This section is provided for lawyers toexplain any necessary adjustments to theirreconciliation. Adjustments might berequired if, for example, you identify bankerrors in your review of the bank statement.Adjustments that are made to balancesmust be explained with documentation.

6. Your Adjusted Trust Account BankBalance is your Subtotal plus or minus anynecessary 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 thisimbalance has been corrected. The personwho completed the reconciliation shouldsign the form, as well as the lawyer whoreviewed the reconciliation and supportingdocuments. Save this reconciliation for sixyears as required in Rule 1.15-3.

If you have any questions about thisform (or would like a PDF copy) or anyother trust accounting issue, please contactPeter Bolac at (919) 450-7860 [email protected]. Follow Peter on Twitter@TrustAccountNC for alerts on trustaccount scams.

Random AuditsDistricts 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 barliaison and trust account compliance counsel.

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

Top Tips on Trust Accounting: Trust Account Reconciliation Sheet & InstructionsB Y P E T E R B O L A C

IOLTA Update (cont.)

in these roles.The council also appointed three

trustees. John McMillan was reappointedto a second three-year term, and BettyQuick and Sid Eagles were appointed asnew trustees replacing outgoing trusteesLinda M. McGee and Hope H. Connell.

• John B. McMillan is in private prac-tice in Raleigh. He currently serves on theEqual Access to Justice Commission.During his service as NC State Bar presi-dent in 2008-2009, he made it a priority toincrease IOLTA income by implementingcomparability, and he had earlier supportedmoving NC IOLTA to a mandatory pro-gram as a NCSB officer and councilor. Hisknowledge of the State Bar, the IOLTAprogram, and the legal aid community isextremely valuable to our program.

• Elizabeth L. Quick is in private prac-tice in Winston-Salem. Through her workwith a number of charitable organizationsand foundations, she has strong knowledgeof and interest in philanthropy. She is apast-president of the North Carolina BarAssociation, 1997-98.

• Sidney S. Eagles Jr. is in private prac-tice in Raleigh. From 1983 to 2004 heserved first as a judge and later as chiefjudge of the North Carolina Court ofAppeals. He has also served as counsel tothe speaker of the house and as a specialdeputy attorney general. He will bringvaluable judicial perspective to the board. n

38 FALL 2014

At its meetings on April 25, 2014, andJuly 25, 2014, the council of the NorthCarolina State Bar voted to adopt the follow-ing rule amendments for transmission to theNorth Carolina Supreme Court for approval(for the complete text see the Spring 2014and Summer 2014 editions of the Journal orvisit the State Bar website):

Proposed Amendments to theProcedures for Reinstatement fromInactive Status and AdministrativeSuspension

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

The proposed amendments eliminate thethree different CLE requirements for rein-statement from inactive status and adminis-trative suspension in favor of one standardthat applies to all petitioners for reinstate-ment without regard to when the petitionerwas transferred to inactive or suspended sta-tus; make March 10, 2011, the effective datefor the requirement of passage of the barexam if a petitioner was administratively sus-pended for seven years or more; and permit amember to take up to 6.0 CLE credits peryear online to satisfy the requirements forreinstatement from inactive status andadministrative suspension.

Proposed Amendment to the RulesGoverning the Administration of theCLE Program

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

The proposed amendment requires alawyer to be a nonresident for at least six con-secutive months in a given year to qualify forthe nonresident exemption from mandatoryCLE.

Proposed Amendments to theStandards for Certification as aSpecialist

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

Immigration Law SpecialtyThe proposed amendments to the stan-

dards for the criminal law specialty reducethe number of opposing counsel and judgesthat must be listed as peer references on anapplication 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 toimmigration law may be used to satisfy theCLE requirements for certification andrecertification, and require four peer refer-ences to be from lawyers or judges who havesubstantial experience in immigration law.

Proposed Amendments to the Rules ofProfessional Conduct

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

In 2012 and 2013 the American BarAssociation (ABA) amended the ABA ModelRules of Professional Conduct to addressissues relative to outsourcing, lawyer mobili-ty, and advances in technology. Followingstudy by a special committee of the State BarCouncil, similar proposed amendments to13 of the North Carolina Rules ofProfessional Conduct (the NC Rules) wereapproved for publication by the council onJanuary 24, 2014. An executive summaryand the proposed rule amendments can beviewed in the Spring 2014 edition of theJournal 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 NCRules, unrelated to the ABA amendments,for transmission to the North CarolinaSupreme Court for approval (see the Fall2013 edition of the Journal or visit the StateBar website). However, at its meeting onJanuary 24, 2014, the council decided thatall pending proposed amendments to theNC Rules should be submitted to theSupreme Court at one time. Therefore, pro-posed amendments to the following NorthCarolina Rules of Professional Conduct havebeen approved for transmission to theSupreme Court (proposed amendments to

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

Proposed Amendments to the Rules ofthe Board of Law Examiners

Rules Governing Admission to thePractice of Law in the State of NorthCarolina, Section .0100, Organization

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

Amendments Pending Approval of the Supreme Court

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

The ProcessProposed amendments to the Rules

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


At its meeting on July 25, 2014, thecouncil voted to publish the following pro-posed rule amendments for comment fromthe members of the bar:

Proposed Amendments to theDiscipline and Disability Rules

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

To better identify the program’s purpose,the proposed amendments change thename of the Trust Accounting SupervisoryProgram to the Trust Account ComplianceProgram. There are no changes to the sub-stance of the rule other than the namechange.

.0112 Investigations: InitialDetermination; Notice and Response;Committee Referrals

(a) Investigation Authority...(k) Referral to Trust Accounting

Supervisory Compliance Program(1) If, at any time before a finding ofprobable cause, the GrievanceCommittee determines that the allegedmisconduct is primarily attributable tothe respondent’s failure to employ soundtrust accounting techniques, the com-mittee may offer the respondent anopportunity to voluntarily participate inthe State Bar’s tTrust aAccount supervi-sory Compliance pProgram for up totwo 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 respondentmust fully cooperate with the TrustAccount Compliance Counsel….(2) Completion of Trust AccountSupervisory Compliance Program...(3) The committee will not refer to theprogram any case involving possible mis-appropriation of entrusted funds, crimi-nal conduct, dishonesty, fraud, misrepre-sentation, or deceit, or any other case thecommittee deems inappropriate forreferral...Referral to the TrustAccounting Supervisory ComplianceProgram is not a defense to allegations

that a lawyer misappropriated entrustedfunds, engaged in criminal conduct, orengaged in conduct involving dishon-esty, fraud, misrepresentation, or deceit,and it does not immunize a lawyer fromthe disciplinary consequences of suchconduct.

Proposed Amendments to the RulesGoverning the Administration of theCLE Program

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

The proposed amendments change thename of the mandatory CLE program fornew lawyers from “Professionalism for NewAdmittees” to “Professionalism for NewAttorneys” (PNA Program), and permit theBoard of Continuing Education to approvealternative timeframes for the PNAProgram, which will give CLE providersmore flexibility to be creative in their pre-sentations of the program.

.1518 Continuing Legal EducationProgram

(a) Annual Requirement...(c) Professionalism Requirement for

New Members. Except as provided in paragraph (d)(1),

each active member admitted to the NorthCarolina State Bar after January 1, 2011,must complete the North Carolina StateBar Professionalism for New AdmitteesAttorneys Program (PNA Program) in theyear the member is first required to meetthe continuing legal education require-ments as set forth in Rule .1526(b) and (c)of this subchapter. CLE credit for the PNAProgram shall be applied to the annualmandatory continuing legal educationrequirements set forth in paragraph (a)above.

(1) Content and Accreditation. TheState Bar PNA Program shall consist of12 hours of training in subjects designat-ed by the State ...(2) Evaluation ...(3) Format Timetable and PartialCredit. The PNA Program shall be pre-

sented in two six-hour blocks (withappropriate breaks) over two days. Thesix-hour blocks do not have to beattended on consecutive days or takenfrom the same provider; however, nopartial credit shall be awarded forattending less than an entire six-hourblock unless a special circumstancesexemption is granted by the board. Theboard may approve an alternativetimetable for a PNA program upondemonstration by the provider that thealternative timetable will provide anenhanced learning experience or forother good cause; however, no partialcredit shall be awarded for attendingless than the entire 12-hour programunless a special circumstances exemp-tion is granted by the board. (4) Online and Prerecorded Programs.

The PNA Program may be distributed overthe Internet by live web streaming (webcast-ing) but no part of the program may betaken online (via the Internet) ondemand…

(d) Exemptions from ProfessionalismRequirement for New Members.

...

Proposed Amendments toCertification Standards for theJuvenile Delinquency Subspecialty

27 N.C.A.C. 1D, Section .2500,Certification Standards for the CriminalLaw Specialty

The proposed amendments reduce thenumber of practice hours required to meetthe “substantial involvement” criterion forthe juvenile delinquency subspecialty andallow for additional forms of “practiceequivalents.” This will reflect more realisti-cally the practice experience of qualified

Proposed Amendments

Thank You to OurMeeting Sponsor

Thank you to Lawyers Mutual forsponsoring the July quarterly meeting.

juvenile delinquency practitioners, particu-larly in rural communities.

.2508 Standards for Certification as aSpecialist in Juvenile Delinquency Law

Each applicant for certification as a spe-cialist in juvenile delinquency law shall meetthe minimum standards set forth in Rule.1720 of this subchapter. In addition, eachapplicant shall meet the following standardsfor certification:

(a) Licensure and Practice ...(b) Substantial Involvement - An appli-

cant shall affirm to the board that the appli-cant has experience through substantialinvolvement in the practice of juveniledelinquency law.

(1) Substantial involvement shall meanduring the five years immediately preced-ing the application, the applicant devot-ed an average of at least 500 400 hours ayear to the practice of juvenile delin-quency law, but not less than 400 100hours in any one year. “Practice” shallmean substantive legal work, specificallyincluding representation of juveniles orthe state in juvenile delinquency court,done primarily for the purpose of provid-ing legal advice or representation, or apractice equivalent.(2) “Practice equivalent” shall mean:

(A) ...(B) ...(C) Service as a law professor in a juve-nile delinquency legal clinic at anaccredited law school may be used tomeet the requirement set forth in Rule.2508(b)(1).(D) The practice of state criminal lawmay be used to meet the requirementset forth in Rule .2508(b)(1) but notto exceed 100 hours for any year dur-ing the five years. “Practice of statecriminal law” shall mean substantivelegal work representing adults or thestate in the state’s criminal district andsuperior courts

(3) ...(b) Continuing Legal Education...

Proposed Amendments to theStandards for Certification ofParalegals

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

The proposed amendments permit a

degree from a foreign educational institu-tion to satisfy part of the educationalrequirements for certification if the foreigndegree is evaluated by a qualified credentialevaluation service and found to be equiva-lent to an associate’s or bachelor’s degreefrom an accredited US institution.

.0119 Standards for Certification ofParalegals

(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 haveearned one of the following:

(A) an associate’s, bachelor’s, or master’sdegree from a qualified paralegal studiesprogram; (B) a certificate from a qualified para-legal studies program and an associate’sor bachelor’s degree in any discipline

from any institution of post-secondaryeducation that is accredited by anaccrediting body recognized by theUnited States Department ofEducation (an accredited US institu-tion) or an equivalent degree from aforeign educational institution if thedegree is determined to be equivalentto a degree from an accredited USinstitution by a organization that is amember of the National Associationof Credential Evaluation Services(NACES) or the Association ofInternational Credentials Evaluators(AICE) and a certificate from a quali-fied paralegal studies program; or(C) a juris doctorate degree from a lawschool accredited by the American BarAssociation.

(2) Examination.... n

40 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 FonvielleHeyward

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 ReidCharlotte, 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


Council ActionsAt its meeting on July 25, 2014, the State

Bar Council adopted the ethics opinionssummarized below:

2013 Formal Ethics Opinion 8Responding to the Mental Impairment of

Firm LawyerOpinion analyzes the responsibilities of

the partners and supervisory lawyers in afirm when another firm lawyer has a mentalimpairment.

2013 Formal Ethics Opinion 12Disclosure of Settlement Terms to Former

Lawyer Asserting a Claim for Fee DivisionOpinion 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 apre-litigation claim for fee division.

2014 Formal Ethics Opinion 4Serving Subpoenas on Health Care

Providers Covered by HIPAAOpinion rules that a lawyer may send a

subpoena for medical records to an entitycovered by HIPAA without providing theassurances necessary for the entity to complywith the subpoena as set out in 45 C.F.R. §164.512(e)(ii).

2014 Formal Ethics Opinion 5Advising a Civil Litigation Client About

Social MediaOpinion rules a lawyer must advise a

client about information on social media ifinformation and postings on social media arerelevant and material to the client’s represen-tation. The lawyer may advise a client toremove information on social media if notspoliation or otherwise illegal.

2014 Formal Ethics Opinion 6Duty to Avoid Conflicts When Advising

Members of Nonprofit OrganizationOpinion 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 ActionsAt 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 RealEstate Loan Closing. The committee also votedto publish a proposed substitute opinion for2013 FEO 2, Providing Defendant withDiscovery During Representation, an opinionthat was adopted by the State Bar Council onJanuary 24, 2014. Although the committeedeclined to recommend withdrawal of theexisting opinion at this time, it is publishingthe proposed substitute opinion to garnercomment from members of the bar. On page46 the Legal Ethics column considers thecompeting concerns addressed in the adoptedopinion and the proposed substitute opinionwhich are printed, in their entirety, after thearticle. The Ethics Committee also voted topublish a revised version of one proposedopinion and three new proposed opinions.The comments of readers on the proposedopinions are welcomed.

Proposed 2014 Formal Ethics Opinion 1Protecting Confidential ClientInformation When MentoringJuly 24, 2014

Proposed opinion examines issues relative toconfidentiality and the attorney-client privilegewhen mentoring law students and lawyers.

Note: This opinion does not apply to lawstudents certified pursuant to the RulesGoverning the Practical Training of LawStudents (27 N.C.A.C 1C, Section .0200) orto lawyers, employees, or law clerks (paid orvolunteer) being mentored or supervised by alawyer within the same firm. This opinionaddresses issues pertaining to informal men-toring relationships between lawyers, orbetween a lawyer and a law student, as well asto established bar and/or law school mentor-ing programs. Mentoring relationshipsbetween a lawyer and a college or a high

school student are not addressed by this opin-ion because such relationships require morerestrictive 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 confidentialclient consultations between the lawyer andthe 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 thelawyer’s client gives his or her informed con-sent, confirmed in writing.

Rule 1.6(a) of the Rules of ProfessionalConduct provides that a lawyer shall notreveal information acquired during the profes-sional relationship with a client unless (1) theclient gives informed consent; (2) the disclo-sure is impliedly authorized; or (3) one of theexceptions 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 aproposed course of conduct after the lawyerhas communicated adequate information andexplanation appropriate to the circum-stances.”

Relevant to mentoring scenarios is thepotential waiver of the attorney-client privi-lege that can occur when communicationsbetween the lawyer and the client take place inthe presence of a third party. The attorney-client privilege prohibits a lawyer from testify-ing as to confidential communicationsbetween 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 distinctionbetween the duty of confidentiality set out inRule 1.6 of the Rules of Professional Conduct

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

Committee Revisits Sending a NC Subpoena to aRecords Custodian in Another Jurisdiction

and the attorney-client privilege. Althoughthe 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 existsif (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 amatter about which the attorney is being pro-fessionally consulted, (4) the communicationwas made in the course of giving or seekinglegal 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 at442. Because the representation of a clienttypically includes many activities that are notconfidential communications between aclient and a lawyer, there are many opportu-nities for a mentee to observe a lawyer/men-tor without implicating the attorney-clientprivilege. (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’sinformed consent, the lawyer must researchthe law relating to the attorney-client privi-lege and explain to the client what effect thelaw student’s presence during the consulta-tion may have on the attorney-client privilegeincluding a potential waiver of the privilege.The lawyer must also explain any otheradverse effect on the client’s interests. ABAStanding Comm. on Ethics and Prof’l Resp.,Formal Op. 98-411(1988). The lawyer mustnot ask for consent unless, in his professionalopinion, either the attorney-client privilegewill not be waived by the presence of the lawstudent or a potential waiver of the attorney-client privilege will cause minimal, or no,detriment to the client’s interests such that toask for consent is reasonable.

Pursuant to Rule 1.0(c), “confirmed inwriting” in this context “denotes informedconsent that is given in writing by the personor a writing that a lawyer promptly transmitsto the person confirming an oral informedconsent.”

The issues addressed in this opinion as tothe 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 thelawyer’s client but is not participating in the

representation as co-counsel or as an agent ofthe representing lawyer.

Inquiry #2:If a lawyer is mentored by a lawyer in a

different law firm, do the requirements inOpinion #1 apply when the lawyer-menteeobserves a client consultation between thelawyer-mentor and a client or when thelawyer-mentor observes the lawyer-menteeconducting such a consultation with hisclient?

Opinion #2:Yes. The lawyer conducting the consulta-

tion must evaluate the effect of the observinglawyer’s presence on the attorney-client priv-ilege. If the lawyer concludes that, in his pro-fessional opinion, either the attorney-clientprivilege will not be waived by the presenceof the other lawyer, or a potential waiver ofthe attorney-client privilege will cause mini-mal or no detriment to the client’s interestssuch that to ask for consent is reasonable, thelawyer may ask the client to consent to theobservation. The lawyer must obtain theclient’s informed consent confirmed in writ-ing.

The lawyer conducting the consultationmust also obtain an agreement from theobserving lawyer to maintain the confiden-tiality of the information as well as an agree-ment that the observing lawyer will notengage in adverse representations. Rule 1.7and Rule 1.9.

Both lawyers should check for conflicts ofinterest in advance of the consultation. Rule1.7 and Rule 1.9.

Inquiry #3: When a lawyer seeks advice from a lawyer-

mentor on the representation of a client ofthe lawyer, what actions should be taken toprotect confidential client information?

Opinion #3:If possible, the lawyer should try to

obtain guidance without disclosing identify-ing client information, which can be done byusing a hypothetical. If the consultation isgeneral and does not involve the disclosure ofidentifying client information, no client con-sent is necessary and the lawyers do not haveto comply with the requirements set out inOpinion #2.

If the consultation is intended to help thelawyer-mentee comply with the ethics rules,

no client consent is necessary and the lawyersdo not have to comply with the requirementsset out in Opinion #2. Rule 1.6(b)(5) pro-vides that a lawyer may reveal protectedclient information to the extent the lawyerreasonably believes necessary “to secure legaladvice about the lawyer's compliance with[the Rules of Professional Conduct].”Pursuant to Comment [10] to Rule 1.6:

A lawyer's confidentiality obligations donot preclude a lawyer from securing con-fidential legal advice about the lawyer'spersonal responsibility to comply with[the Rules of Professional Conduct]. Inmost situations, disclosing information tosecure such advice will be impliedlyauthorized for the lawyer to carry out therepresentation. Even when the disclosureis not impliedly authorized, paragraph

42 FALL 2014

Public Information The Ethics Committee’s meetings are

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

CitationTo foster consistency in citation to

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

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

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

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

(b)(5) permits such disclosure because ofthe importance of a lawyer's compliancewith the Rules of Professional Conduct.If the consultation does not involve

advice about the lawyer’s compliance withthe Rules of Professional Conduct, a hypo-thetical is not practical, or making theinquiry risks disclosure of information relat-ing to the representation, the lawyer-menteemust comply with the requirements set outin Opinion #2.

Both the lawyer-mentee and the lawyer-mentor should avoid the creation of a con-flict of interest with any existing or formerclients by virtue of the mentoring relation-ship. For example, the lawyer-menteeshould not consult with a lawyer he knowshas represented the opposing party in the

past without first ascertaining that the mat-ters are not substantially related, and thatthe opposing party is not represented in thecurrent matter by the lawyer-mentor.Similarly, the lawyer-mentor should obtaininformation sufficient to determine that thelawyer-mentee’s matter is not one affectingthe interests of an existing or former client.Rule 1.7 and Rule 1.9.

Proposed 2014 Formal Ethics Opinion 7Use of North Carolina Subpoena toObtain Documents from Foreign Entityor Individual July 24, 2014

Proposed opinion rules that a lawyer mayprovide a foreign entity or individual with aNorth Carolina subpoena accompanied by astatement/letter explaining that the subpoena isnot enforceable in the foreign jurisdiction, therecipient 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 supplementsand clarifies 2010 FEO 2, Obtaining MedicalRecords from Out of State Health CareProviders.

Inquiry #1: In a state legal matter, a lawyer wishes to

obtain documents from a medical provideror other entity that is not located in NorthCarolina and does not have a registered agentin 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 foreignjurisdiction. The foreign entity indicates thatit will comply with the request for docu-ments upon the receipt of a North Carolinasubpoena “for its records.”

May the lawyer provide the foreign entitywith a North Carolina subpoena accompa-nied by a statement/letter explaining that thesubpoena is not enforceable in the foreignjurisdiction and is provided to the entitysolely 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, ormisrepresentation. RPC 236 provides that itis false and deceptive for a lawyer to use thesubpoena process to mislead the custodian of

documentary evidence as to the lawyer'sauthority to require the production of suchdocuments. 2010 FEO 2 prohibits a lawyer’suse of a subpoena to request medical recordsunder the authority of Rule 45 knowing thatthe North Carolina subpoena is unenforce-able. 2010 FEO 2 explains that if “the NorthCarolina subpoena is not enforceable out ofstate, the lawyer may not misrepresent to theout of state health care provider that it mustcomply with the subpoena.”

RPC 236 and 2010 FEO 2 prohibit alawyer from making misrepresentations tothe subpoena recipient that the lawyer hasthe legal authority to issue the subpoenaunder Rule 45 or misleading the recipient asto whether compliance with the subpoena isrequired by law.

If the subpoena is accompanied by astatement/letter explaining that the subpoe-na is not enforceable in the foreign jurisdic-tion, the recipient is not required to complywith the subpoena, and the subpoena isbeing provided solely for the entity’s records,the lawyer has not made misrepresentationsto, nor misled, the subpoena recipient. Thesubpoena recipient is aware that it cannot becompelled to comply with the subpoena andmay determine whether to provide therequested 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 NorthCarolina court does not have in personamjurisdiction?

Opinion #2:No. If an individual requests a North

Carolina subpoena, knowing that the NorthCarolina court lacks in personam jurisdictionover the individual and the subpoena willnot be enforceable, the lawyer may providethe individual with the subpoena, accompa-nied by a statement/letter explaining that thesubpoena is not enforceable as to the individ-ual and is being provided solely at the indi-vidual’s request.

Proposed 2014 Formal Ethics Opinion 8Accepting an Invitation from a Judgeto Connect on LinkedInJuly 24, 2014

Proposed opinion rules that a lawyer mayaccept an invitation from a judge to be a “con-


Rules, Procedure,Comments All opinions of the Ethics

Committee are predicated upon theRules of Professional Conduct as revisedeffective March 1, 2003, and thereafteramended, and referred to herein as theRules of Professional Conduct (2003).The proposed opinions are issued pur-suant to the “Procedures for Ruling onQuestions of Legal Ethics.” 27N.C.A.C. ID, Sect .0100. Any interest-ed person or group may submit a writ-ten comment or request to be heardconcerning a proposed opinion. Anycomment or request should be directedto the Ethics Committee at PO Box25908, Raleigh, NC 27611, bySeptember 30, 2014.

Captions andHeadnotesA caption and a short description of

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

44 FALL 2014

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

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

Inquiry #1:May a lawyer with a professional profile

on LinkedIn accept an invitation to connectfrom a judge?

Opinion #1:Yes. Interactions with judges using social

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

Rule 8.4(d) provides that it is profession-al misconduct for a lawyer to “engage inconduct that is prejudicial to the administra-

tion of justice.” Rule 8.4(e) provides that itis professional misconduct for a lawyer to“state or imply an ability to influenceimproperly a government agency or offi-cial.” Lawyers have an obligation to protectthe integrity of the judicial system and toavoid 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 amatter before the judge, and the lawyer con-cludes that accepting the invitation willimpair the lawyer’s compliance with theseduties, the lawyer should not accept thejudge’s invitation to connect until the matteris concluded. The lawyer may communicateto the judge the reason the lawyer did notaccept the judge’s invitation. Such a commu-nication with the judge is not a prohibited exparte communication provided the commu-nication does not include a discussion of theunderlying legal matter.

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

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

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

nect to a judge?

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

Opinion #1.

Inquiry #3:A LinkedIn member has the option of

displaying a “skills & expertise” section with-in his profile. A member can add items to the

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

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

May a lawyer endorse a judge’s legal skillsor expertise, or write a recommendation onthe judge’s profile page?

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

Opinion #1.

Inquiry #4:May a lawyer accept an endorsement or

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

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

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

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

ments and recommendations on his

LinkedIn profile page from persons otherthan judges?

Opinion #5:Lawyers are professionally obligated to

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

Inquiry #6:A lawyer previously accepted and dis-

played on his LinkedIn profile page anendorsement or recommendation from alawyer who subsequently became a judge. Isthe lawyer required to remove the endorse-ment or recommendation from the lawyer’sprofile?

Opinion #6:Yes. See Opinion #4.

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

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

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 9Private Lawyer Supervision ofInvestigation InvolvingMisrepresentation July 24, 2014

Proposed opinion rules that a private lawyermay supervise an investigation involving mis-representation if certain conditions are satisfied.

Note: This opinion does not apply to theconduct of a government lawyer. Asexplained in comment [1] to Rule 8.4, theprohibition in Rule 8.4(a) against knowinglyassisting another to violate the Rules ofProfessional Conduct or violating the Rulesof Professional Conduct through the acts ofanother does not prohibit a government

lawyer from providing legal advice to investi-gatory personnel relative to any action suchinvestigatory personnel are lawfully entitledto take.

In addition, this opinion is limited to pri-vate lawyers who advise, direct, or superviseconduct involving dishonesty, deceit, or mis-representation as opposed to a lawyer whopersonally participates in such conduct.

Inquiry: Attorney A was retained by Client C to

investigate and, if appropriate, file a lawsuitagainst Client C’s former employer, E.Employer E employed Client C as a janitorand required him to work 60 hours perweek. E paid Client C a salary of $400 perweek. Attorney A believes that because hisclient’s employment was a “non-exempt posi-tion” under the North Carolina Wage andHour Act, the payment method used by Ewas unlawful. Instead, E should have paidClient C at least $7.25 (minimum wage) perhour for each of the first 40 hours Client Cworked per week, and at least $10.88 (timeand a half ) for each hour in excess of 40(overtime) that Client C worked per week.

Prior to filing a lawsuit, Attorney A wantsto retain a private investigator to investigateE’s payment practices. The private investiga-tor suggests using lawful, but misleading ordeceptive tactics, to obtain the informationAttorney A seeks. For example, the privateinvestigator may pose as a person interestedin being hired by E in the same capacity asClient C to see if E violates the NorthCarolina Wage and Hour Act when compen-sating the investigator.

Prior to filing a lawsuit, may Attorney Aretain a private investigator who will misrep-resent his identity and purpose when con-ducting an investigation into E’s paymentpractices?

Opinion:Rule 8.4(c) provides that it is profes-

sional misconduct for a lawyer to “engagein conduct involving dishonesty, fraud,deceit, or misrepresentation.” This prohi-bition is extended to third parties acting atthe direction of a lawyer by Rule 8.4(a).However, the Rules of ProfessionalConduct 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 permitlawyer 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 BarComm. 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, servean important public policy. The State Bar ofArizona opined that it would be inconsistentwith the intent of the Rules of ProfessionalConduct to interpret the rules to prohibit alawyer from supervising the activity oftesters. Ariz. State Bar Comm. on the Rulesof 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, thecourts, and the legal profession.” The chal-lenge is to balance the public’s interest inhaving unlawful activity fully investigatedand possibly thereby stopped, with the pub-lic’s and the profession’s interest in ensuringthat lawyers conduct themselves with integri-ty and honesty. In an attempt to balancethese two important interests, we concludethat a lawyer may advise, direct, or supervisean investigation involving pretext under cer-tain limited circumstances.

A lawyer may advise, direct, or supervisethe use of misrepresentation (1) in lawfulefforts to obtain information on unlawfulactivity; (2) in the investigation of violationsof criminal law, civil law, or constitutionalrights; (3) if the lawyer’s conduct is otherwisein compliance with the Rules of ProfessionalConduct; (4) the lawyer has a good faithbelief that there is a reasonable possibilitythat a violation of criminal law, civil law, orconstitutional rights has taken place, is tak-ing place, or will take place in the foreseeablefuture; (5) misrepresentations are limited toidentity or purpose; and (6) the evidencesought is not reasonably and readily availablethrough other means.

If Attorney A concludes that each of theconditions is satisfied, he may retain a privateinvestigator to conduct an investigation intoE’s payment practices which investigationmay include misrepresentations as to identityand purpose. n


46 FALL 2014

Imagine that you have beenwrongly accused of a crime thatis punishable by death. Becauseyou are incarcerated, you havebeen forced to close down yourlaw practice. With no income,

you are unable to retain a private defenselawyer. Therefore, you are being defendedby a court-appointed lawyer. Eager to learnwhat evidence the state has against you, youask to see the discovery. Your lawyer reviewsthe discovery and provides you with hissummary of the relevant discovery materials.Anxious and unsatisfied, you request theopportunity to review the complete discov-ery file. Do the Rules of ProfessionalConduct require your lawyer to complywith 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, allof which have been recorded per prison reg-ulations. The recordings are included in thediscovery materials provided to you by thestate. Your paralegal reviews the 17 plushours of recordings and determines thatthey contain no information relevant toyour client’s legal defense. After providingthe defendant with your summary of the rel-evant discovery materials, the defendantrequests the opportunity to personallyreview all of the discovery, including therecordings of the telephone conversations. Itis not permissible to leave the discovery withthe defendant in the jail. Therefore, one ofyour staff members will have to travel to thejail and sit with the defendant while hereviews the written discovery and listens tothe recordings. Do the Rules of ProfessionalConduct require you to comply with thedefendant’s request?

Rule 1.4 provides that a lawyer shall keepa client reasonably informed about the status

of a matter and promptly comply with rea-sonable requests for information. The twoscenarios above demonstrate that what is“reasonable” may be in the eyes of thebeholder.

A recently adopted ethics opinionattempts to give guidance to lawyers facedwith such discovery review requests.Pursuant to 2013 FEO 2 (adopted1/24/2014), if, after providing a criminalclient with a summary of the discoverymaterials, the client requests access to theentire discovery file, the lawyer must affordthe client the opportunity to review all ofthe “relevant” discovery materials unless thelawyer believes it is not in the best interest ofthe client’s legal defense to comply with therequest. In determining what discoverymaterials are relevant, and what disclosure isin the best interest of the client’s legaldefense, the lawyer must exercise his inde-pendent professional judgment.

The content of 2013 FEO 2 was, andcontinues to be, hotly debated. Some lawyersbelieve a criminal defense client is absolutelyentitled to review everything in the client’sfile. Other lawyers argue that a criminaldefense lawyer has absolute discretion todetermine what file materials to disclose to acriminal client. Rule 1.2 discusses the generalallocation of authority between the lawyerand the client. The rule provides that a lawyermust abide by a client's decisions concerningthe objectives of representation and, asrequired by Rule 1.4, shall consult with theclient as to the means by which they are to bepursued. Comment [2] to Rule 1.2 notes thatclients “normally defer to the special knowl-edge and skill of their lawyer with respect tothe means to be used to accomplish theirobjectives, particularly with respect to techni-cal, legal, and tactical matters.”

Query: Is a criminal defense lawyer’sdecision on whether to provide a client withunlimited access to discovery materials a

matter of trial strategy and judgment thatultimately lies within the lawyer’s discretion?

There are genuine concerns underlyingthe continuing discussion: the limitedresources available to represent indigentdefendants; the practical difficulties in pro-viding discovery review to an incarcerateddefendant; the sheer volume of discoveryproduced 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 thesesometimes competing concerns in the con-text of a lawyer’s duties under the Rules ofProfessional Conduct. Of paramountimportance in the drafting was the desire tocraft an ethics opinion that did not differen-tiate a lawyer’s professional responsibilitiesto clients based on the client’s location orability to pay for the lawyer’s services.

The Ethics Committee continued todebate 2013 FEO 2 even after its adoption.Given the importance of the issuesaddressed in the opinion, as well as thenecessity for immediate guidance for crimi-nal defense lawyers, the Ethics Committeetook an unusual step at its meeting on July24, 2014, by voting to publish for commentan 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 andwhat disclosure is in the best interest of theclient’s legal defense, the lawyer must exer-cise his or her independent professionaljudgment in the context of the critical deci-sions that are exclusively those of the crimi-nal defendant. Under Rule 1.2(a)(1), theclient in a criminal case has the authority todecide the “plea to be entered, whether towaive a jury trial, and whether [to] testify.”The opinion draws the connection betweenthese decisions and the duty to keep theclient reasonably informed and to respond

Grappling with the Duty to Inform When a Client is IncarceratedB Y S U Z A N N E L E V E R

L E G A L E T H I C S


to requests for information. The alternativeproposed opinion states that a criminaldefense lawyer complies with the require-ment of Rule 1.4 to keep a client “reasonablyinformed” by providing the client withinformation sufficient to make these impor-tant decisions.

The two opinions also differ slightly as tothe criteria for withholding relevant discov-ery from a criminal defense client. Theadopted opinion provides that a lawyer maywithhold relevant discovery if withholdingthe information is in the best interest of theclient’s legal defense. The adopted opinionadds that the defense lawyer may redactinformation that would endanger the safetyand welfare of the client or others, violate acourt rule or order, or is subject to a protec-tive order or nondisclosure agreement. Theacceptable justifications for withholding rel-evant discovery in the alternative opinion areexpanded to include discovery agreementsand time constraints due to the volume ofdiscovery and deadlines for trial or pleas.

Query: Does the adopted opinion allowmore discretion to the lawyer because it doesnot specify the conditions under which alawyer may withhold review of discoveryfrom an incarcerated client, or is more spe-cific guidance, as provided in the alternativeopinion, preferable?

Comments on the adopted opinion aswell as the alternative draft will be consid-ered at the October ethics meeting.

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

Providing Discovery to an IncarceratedClient

At its meeting on July 24, 2014, theEthics Committee considered a motion torecommend that the State Bar Councilwithdraw existing ethics opinion 2013 FEO4, which was adopted by the Council inJanuary of this year, and to publish a pro-posed substitute opinion. The motion failedbut 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 thesubstitute so that members of the bar couldcompare and offer comment on whether thesubstitute, by providing additional or differ-ent guidance, should supersede the existingopinion. Comments are strongly encour-

aged and should be directed to the EthicsCommittee at PO Box 25908, Raleigh, NC27611, by September 30, 2014.

2013 FEO 2Providing Defendant with DiscoveryDuring RepresentationJanuary 24, 2014

Opinion rules that if, after providing acriminal client with a summary/explanationof the discovery materials in the client’s file,the client requests access to the entire file, thelawyer must afford the client the opportunityto meaningfully review all of the relevant dis-covery materials unless the lawyer believes it isin the best interest of the client’s legal defensenot to do so.

Inquiry #1:Lawyer represents Defendant in a crim-

inal case. The state has provided Lawyerwith discovery as PDF files. The state hasalso provided Lawyer DVDs containingcopies of the video recordings of interroga-tions of Defendant and a codefendant; sur-veillance videotapes; and audio recordingsof 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 the17 hours of video and audio recordings.

Does Lawyer have an ethical duty tocomply with the client’s demand?

Opinion #1:As a matter of professional responsibili-

ty, Rule 1.4 requires a lawyer to “keep aclient reasonably informed about the statusof a matter” and “promptly comply withreasonable requests for information.” Asstated in comment [5] to Rule 1.4:

The client should have sufficient infor-mation to participate intelligently indecisions concerning the objectives of therepresentation and the means by whichthey are to be pursued...The guidingprinciple is that the lawyer should fulfillreasonable client expectations for infor-mation consistent with the duty to act inthe client's best interests, and the client'soverall requirements as to the characterof 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 theclient informed of the developments inthe case and the progress of preparingthe defense and should promptly com-ply with reasonable requests for infor-mation.(b) Defense counsel should explaindevelopments in the case to the extentreasonably necessary to permit the clientto make informed decisions regardingthe representation.During the course of the representation,

the lawyer complies with the requirementsof Rule 1.4 by providing the client with asummary of the discovery materials andconsulting with the client as to the rele-vance of the materials to the client’s case.However, if the lawyer has provided theclient with a summary/explanation of thediscovery materials and the client, nonethe-less, requests copies of any of the file mate-rials, the lawyer must afford the client theopportunity to meaningfully review all ofthe relevant discovery material unless thelawyer believes it is in the best interest ofthe client’s legal defense to deny therequest. The lawyer is not required to pro-vide the client with a physical copy of thediscovery materials during the course of therepresentation.

In determining what discovery materialsare relevant, and what disclosure is in thebest interest of the client’s legal defense, thelawyer must exercise his or her independentprofessional 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 informationconsistent with the duty to act in theclient'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 notwithhold information to serve the lawyer’sown interest or convenience or the interestor convenience of another person.”Therefore, the lawyer may not deny therequest 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

48 FALL 2014

private information of a third person, suchas the address of a witness or pictures of analleged rape victim?

Opinion #2:The lawyer may redact or otherwise

remove information that the lawyer deter-mines, in his professional discretion, shouldnot be disclosed to the client, including infor-mation that would endanger the safety andwelfare of the client or others, violate a courtrule or order, or is subject to any protectiveorder or nondisclosure agreement. See Rule1.4, cmt. [7].

Proposed Substitute for 2013 FormalEthics Opinion 2 Providing Incarcerated Defendant withOpportunity to Review DiscoveryMaterials July 24, 2014

Proposed substitute opinion rules that if,after providing an incarcerated criminal clientwith a summary/explanation of the discoverymaterials in the client’s file, the client requestsaccess to any of the discovery materials, thelawyer must afford the client the opportunity tomeaningfully 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 givenLawyer DVDs containing copies of the videorecordings of interrogations of Defendantand a codefendant; surveillance videotapes;and audio recordings of calls made byDefendant 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 17hours 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 clientreasonably informed about the status of amatter” and “promptly comply with reason-able requests for information.” As stated incomment [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 theyare to be pursued...The guiding principleis that the lawyer should fulfill reasonableclient expectations for information con-sistent with the duty to act in the client'sbest interests, and the client's overallrequirements as to the character of repre-sentation.The duties set out in Rule 1.4 are similar

to those found in ABA Standards forCriminal Justice, Defense Functions,Standard 4-3.8 (3d ed. 1993) which provides:

(a) Defense counsel should keep the clientinformed of the developments in the caseand the progress of preparing the defenseand 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 makeinformed decisions regarding the repre-sentation.Under Rule 1.2(a)(1), the client in a crim-

inal case has the authority to decide, “afterconsultation with the lawyer, as to a plea to beentered, whether to waive a jury trial, andwhether the client will testify.” During thecourse of the representation, a criminaldefense lawyer complies with the require-ments of Rule 1.4 to keep a client “reasonablyinformed” 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 witha summary of the discovery materials andconsulting with the client as to the relevanceof the materials to the client’s case. If thelawyer has provided the client with a summa-ry/explanation of the discovery materials andthe client, nonetheless, requests copies of orasks to review any of the file materials, theduty to comply with reasonable requests forinformation requires the lawyer to afford theclient the opportunity to meaningfully reviewrelevant discovery material unless one ormore of the following conditions exist: (1) thelawyer believes it is in the best interest of theclient’s legal defense to deny the request; (2) aprotective order or court rule limiting the dis-covery materials that may be shown to thedefendant or taken to a jail or prison is ineffect; (3) such review is prohibited by thespecific terms of a discovery agreement1

between the prosecution and the defenselawyer; (4) because of circumstances beyondthe defense counsel’s control, such review is

not feasible in light of the volume of discov-ery materials and the time remaining beforetrial or before a decision must be made by theclient on a plea offer; or (5) disclosure of thediscovery materials will endanger the safety orwelfare of the client or others.

In determining what discovery materialsare relevant, and what disclosure is in the bestinterest of the client’s legal defense, the lawyermust exercise his or her independent profes-sional judgment in the context of the deci-sions that the defendant must make aboutwhat plea to enter, whether to waive jury trial,and whether to testify. See Rule 1.2(a)(1). Asnoted above: “The guiding principle is thatthe lawyer should fulfill reasonable clientexpectations for information consistent withthe duty to act in the client's best interests,and the client's overall requirements as to thecharacter of representation.” Rule 1.4, cmt.[5]. However, as stated in comment [7] toRule 1.4, a lawyer “may not withhold infor-mation to serve the lawyer’s own interest orconvenience or the interest or convenience ofanother person.” Therefore, the lawyer maynot deny the request due to issues of expenseor inconvenience.

Regardless of whether the lawyer deter-mines that the client should have an opportu-nity to review some or all of the discoverymaterials, 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, mayLawyer redact or otherwise remove privateinformation of a third person, such as theaddress of a witness or pictures of an allegedrape victim?

Opinion #2:The lawyer may redact or otherwise

remove information that the lawyer deter-mines, in his professional judgment, shouldnot be disclosed to the client, including infor-mation that would endanger the safety andwelfare 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

Endnote1. Discovery agreements between the prosecution and the

defense may present other ethical concerns notaddressed in this opinion.


All of the law schools located in NorthCarolina are invited to provide material for thiscolumn. Below are the submissions we receivedthis quarter.

Campbell University School of LawCampbell Law Confers 150 Degrees at

2014 Graduation—Campbell Law Schoolconferred 150 Juris Doctor degrees at its 36thannual hooding and graduation ceremony onMay 9 at Meymandi Concert Hall at theDuke Energy Center for the Performing Arts.Red Hat President and Chief ExecutiveOfficer Jim Whitehurst delivered the com-mencement address.

The National Jurist Names Campbell Lawto List of Top Private Law Schools for BestValue—Campbell Law School has beennamed to a list of the top 22 private lawschools in the country for best value by TheNational Jurist. In selecting institutions forinclusion, 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 inNITA Tournament of Champions—Campbell Law School has received an invita-tion to the prestigious National Institute ofTrial Advocacy’s Tournament ofChampionships mock trial competition. Oneof the premier mock trial competitions in thecountry, only 16 law schools are invited to theTournament of Champions.

Campbell Law Students Awarded WCBAScholarships—Campbell Law School studentsAmanda Brookie and Emily Pappas have beenawarded Wake County Bar AssociationMemorial Scholarships for the upcoming aca-demic year. Brookie, a rising second year stu-dent, and Pappas, a rising third year, formallyreceived their $5,000 scholarships during apresentation at a recent WCBA luncheon onJune 3 at the Women’s Club of Raleigh.

Benton named NCBA President-Elect—Shelby Duffy Benton, a 1985 Campbell Lawgraduate, has been named president-elect ofthe North Carolina Bar Association. She is the

first Campbell Law graduate to serve theNCBA in this capacity.

Charlotte School of LawStudent 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 StudentSuccess Program, a comprehensive addition toits program of education that is unique toAmerican legal education. The purpose of theprogram is to systematically develop key com-petencies vital to success in law school, on thebar exam, in job search and career develop-ment, and in professional endeavor. Initiallythe program will focus on the competencyclusters of grit, professionalism, and emotion-al intelligence (self-awareness and relationshipbuilding). The competencies will be devel-oped through integration into the pedagogyof small classes, a graduation requirement thatcalls on students to complete activities orassessments throughout the three years, andtraining law school staff to support and rein-force development of these competencies.

Partnership with Yingke Law Firm—Charlotte has entered into a partnership withthe Yingke Law Firm for the law school toprovide training programs to lawyers in thefirm. Yingke is the largest law firm in theAsian-Pacific region with 2,400 lawyers in 40offices in major commercial regions aroundthe world. The educational programs will pro-vide lawyers based in China with substantivetraining in US business law and other areasimportant to the work of Yingke lawyers.

Ms. JD Fellowship—Charlotte studentLexi Andresen has been selected as one of 15recipients of the Ms. JD Fellowship. The fel-lowship, awarded in partnership with theABA Commission on Women in theProfession, recognizes academic performance,leadership, and dedication to advancing thestatus of women in the profession. Fellows areprovided with a mentor who has been a win-ner of the ABA Brent Award. Andresen is thefirst fellowship recipient from a North

Carolina law school.

Duke Law SchoolNew Civil Justice Clinic Focuses on Civil

Litigation Assistance for Low-IncomeClients—Duke Law School has launched theCivil Justice Clinic, the school’s tenth clinicalprogram. A partnership between Duke Lawand Legal Aid of North Carolina (LANC),the clinic has the dual focus of providing sub-stantive legal assistance to low-income clientswho have little access to civil justice, as well asfacilitating students’ development of practicallitigation skills that are readily translatable to awide variety of cases and practice areas. Forstudents, the clinic includes a substantiveweekly seminar, direct client representation,and individual supervision and instructionfrom Duke faculty and LANC attorneys.

The clinic, which is based out of theDurham LANC office, is directed by CharlesR. Holton, a partner at Womble CarlyleSandridge & Rice in Research Triangle Parkwho currently chairs the LANC Board ofDirectors. He is a longstanding member of thelocal advisory committee for LANC'sDurham office and was named Pro BonoAttorney of the Year for 2013 by the NorthCarolina Bar Association.

Student-Run Cancer Pro Bono ProjectHonored by NCBA—The Duke-UNCCancer Pro Bono Project was honored in Junewith the North Carolina Bar Association’s2014 Law Student Group Pro Bono Award.The project represents a partnership betweenDuke Law School, UNC School of Law, andthe Duke and UNC Cancer Centers. Underthe supervision of volunteer attorneys, lawstudents hold advanced directive clinics ateach cancer center twice each month, wherethey interview patients to assess their legalneeds and educate them on matters related toadvanced directives. They draft the relevantdocuments for their clients and, with theirsupervisors, facilitate their review and execu-tion by the patient-clients.

Elon University School of LawNational Symposium Advances Experiential

B A R U P D A T E S

Law School Briefs

50 FALL 2014

Education in Law—A June 13-15 nationalsymposium at Elon Law featured researchfindings about the educational value of immer-sive and recurring legal practice experiences forlaw students. Elon welcomed more than 150participants from the US and Canada includ-ing members of the legal academy and profes-sion, and representatives from other disciplinesincluding architecture, business, and medicine.

“This is not just about clinical legal educa-tion,” said Luke Bierman, dean and professorof 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 thingsin a particular way, and how to think abouthow it fits into the enterprise of legal educa-tion and the goals we have for our students.”

ABA President-Elect William C. Hubbardcalled for innovators in law and legal educa-tion to shape the future of justice by creatingmore efficient and effective models for thedelivery of legal services. Prominent law schol-ar William Henderson presented researchindicating that Northeastern’s CooperativeLegal Education Program (co-op) acceleratesmore self-aware and deliberate career planningby students, enabled by insights they gain dur-ing nearly a year of full-time legal experiencethrough the program. NCBA President AlanDuncan highlighted NCBA programs includ-ing the Center for Practice Management, pro-viding two full-time staff devoted to assistingattorneys with law firm start up, technology,and practice management questions.

Other highlights included: • practitioners and teachers in medical,

architectural, and business sectors presentedinsights about experiential education compo-nents in their fields

• law school leaders presented innovativeexperiential education programs establishedsince 2012

• panelists presented research in areas suchas cost and sustainability measures for experi-ential legal education and the regulatory land-scape at national and state levels surroundingpedagogical change in law schools.

Visit the symposium website for details:law.elon.edu/aell.

North Carolina Central UniversitySchool of Law

Wallace to Lead NCCU DisputeResolution Institute—NCCU Law ProfessorKathleen Wallace was named director of theschool’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 AlternativeDispute Resolution (ADR) Clinic in 2000and the DRI in 2006.

The practice of alternative dispute resolu-tion seeks to avoid the typical adversarialapproach of litigation in order to better pre-serve the relationship between those in con-flict. This is particularly important in casesinvolving divorcing parents, family members,business partners, and neighbors—anyonewho anticipates ongoing interaction.

At NCCU’s Dispute Resolution Institute,those seeking a certificate complete three corecourses—Negotiation, Mediation, andArbitration—and select from among a dozenothers in ADR processes and practice to totalten credit hours.

One popular elective is the ADR Clinic.NCCU Law has partnered with the Elna B.Spaulding Conflict Resolution Center tomediate cases presented at the center and indistrict court in Durham. Each Friday the stu-dents gain hands-on experience mediatingcommunity disputes, Medicare/Medicaidappeals, and misdemeanor offences involvingproperty damage and simple assaults.

According to Wallace, “Our students caneasily parlay these negotiation and conflictmanagement skills in almost any professionalcapacity.”

She should know. Since 2004 Wallace hasalso served as a mediator for the US OlympicCommittee. As a crisis intervention specialistand legal counsel for the US ParalympicTeam, Wallace attended the ParalympicGames in Sochi, Russia, where she manageddisputes regarding rule interpretation, disqual-ifications, and athletes’ rights.

Wallace intends to use her tenure as direc-tor to increase students’ engagement in thecommunity. “I’d like to see more work withyouth in conflict management and with fam-ilies in crisis regarding decisions about eldercare,” said Wallace.

University of North Carolina School of Law

Dean Boger Announces Plan to Return toTeaching—John Charles “Jack” Boger ’74announced that he will conclude his role asdean of the law school in July 2015 to returnto the law school faculty. He will have servedas dean for nine years, and as a member of theUNC 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 forCivil Rights. He holds the Wade EdwardsDistinguished Chair. Boger will continue tolead the law school until his successor isnamed and assumes the leadership role in thesummer of 2015.

New Associate Dean for Student Affairs—The law school welcomes Paul Rollins to itsstaff, starting in August as its new associatedean for student affairs. Rollins, a native ofSouth Carolina, received his BA degree fromthe University of South Carolina and his JDdegree from Yale Law School. He joins UNCfrom UGA’s law school, where he served asassociate dean for administration and studentaffairs. In his role at UNC he will oversee theadmissions, student services, and career devel-opment offices.

Faculty Corporate Law Treatise Quoted bySCOTUS—In the recently decided HobbyLobby case, both the majority and the dissent-ing opinions of the Supreme Court citedpropositions from Treatise on the Law ofCorporations, a book co-authored by TomHazen, the Cary C. Boshamer DistinguishedProfessor of Law at UNC School of Law, andJames Cox, a law professor at Duke. TheSupreme Court previously has cited Hazen’swork in securities law, but the opinions in theHobby Lobby case represent the first time thatboth the majority and dissent cited his workin the same case.

Wake Forest University School of Law Interim Dean Named—Wake Forest

University School of Law Executive AssociateDean for Academic Affairs Suzanne Reynolds(’77) has been named interim dean of the lawschool effective September 1, following theannouncement that Dean Blake D. Moranthas accepted an offer to become dean atGeorge Washington Law School.

Reynolds has served as Wake Forest Law’sexecutive associate dean for academic affairsfor the past four years. She is the first womanto serve as dean of Wake Forest Law.

Needham Yancy Gulley Professor ofCriminal Law Ron Wright, who served asexecutive associate dean for academic affairs atthe law school for three years prior toReynolds, will step back into his former role.

Both appointments are for the 2014-2015academic year, according to WFU ProvostRogan Kersh. A national search for Dean



James B. Maxwell is a recipient of the JohnB. McMillan Distinguished Service Award. AVirginia native, Mr. Maxwell earned hisundergraduate degree from the Randolph-Macon College in 1963, and his law degreefrom Duke University in 1966. Mr. Maxwellcurrently 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 countlessendeavors, Mr. Maxwell was the first lawyer toserve both as president of the NC Academy ofTrial Lawyers and as president of the NorthCarolina Bar Association. In addition, Mr.Maxwell has coached the Duke UniversityLaw School National Moot Court Team since2002, has been chair of the Legal Aid Board ofDirectors, and chair of the Lawyers MutualClaims Committee. He has been listed in theBest Lawyers in America since 1987. He hasspoken at dozens of CLEs and written numer-ous articles relating to both litigation and pro-fessional ethics. A man of character who hasdedicated his life to serving the legal commu-nity and the public, James B. Maxwell is adeserving recipient of the John B. McMillanDistinguished Service Award.

Sharon A. Thompson is a recipient of theJohn B. McMillan Distinguished ServiceAward. Ms. Thompson began practicing lawin 1976 in Raleigh. In 1979 she became amember of Thompson & McAllaster, whereshe remained until starting the SharonThompson Law Group in 1991. Ms.Thompson currently concentrates in familylaw but has previously practiced in a widerange of areas. Ms. Thompson served twoterms in the NC House of Representativesfrom 1987-1990. She was also an adjunct pro-fessor at NC Central University Law School.A pioneer, Ms. Thompson was a cofounder ofthe NC Association of Women Attorneys(NCAWA), and founding member and firstpresident of the NC Gay and LesbianAttorneys (NC GALA). In 1987 Ms.Thompson was granted the annual awardfrom the NCAWA for promoting the partici-

pation of women in the legal profession andthe rights of women under the law. She was amember of the Board of Governors of the NCAcademy of Trial Lawyers, and in 2007 shewas inducted into the NC Bar Association’sGeneral Practice Hall of Fame. She has spokenat numerous CLEs and published many arti-cles focusing on family law issues for LGBTclients. An excellent lawyer and civil rightsadvocate, Sharon A. Thompson is a deservingrecipient of the John B. McMillanDistinguished Service Award.

M. Gordon Widenhouse is a recipient ofthe John B. McMillan Distinguished ServiceAward. Mr. Widenhouse received his under-graduate degree from Davidson College in1976, his Master of Arts from UNC-Greensboro in 1978, and his JD from WakeForest University Law School in 1982.Following law school, Mr. Widenhouseclerked in the United States District Court,and then for Justice James Exum in the NorthCarolina Supreme Court. After a time as anassistant appellate defender and assistant fed-eral public defender, Mr. Widenhouse hasfocused his career on appellate litigation andcriminal defense with the firm of Rudolf,Widenhouse & Filako in Chapel Hill. Mr.Widenhouse has been an adjunct professor atNC Central University Law School, where hewas awarded a Charles L. Becton TeachingAward in 2013. In addition to teaching lawstudents, Mr. Widenhouse has devoted timeto assisting high school students in NorthCarolina with a better understanding of thelegal system and the legal profession as one ofthe founders of the Wade Edwards HighSchool Mock Trial Program for the NCAJ.The award for the best overall competitor atthe competition is named after Mr.Widenhouse. He has spoken at numerousCLEs, published numerous articles, and isconsidered a mentor to many lawyers. Listedin NC Super Lawyers since 2007 and BestLawyers in America since 2002, Mr.Widenhouse has had a career of service to thebar and to the public, and is a deserving recip-ient of the John B. McMillan DistinguishedService Award.

Seeking Award NominationsThe John B. McMillan Distinguished

Service Award honors current and retiredmembers of the North Carolina State Bar whohave demonstrated exemplary service to thelegal profession. Awards will be presented inrecipients’ districts, with the State Bar coun-cilor from the recipient’s district introducingthe recipient and presenting the certificate.Recipients will also be recognized in theJournal and honored at the State Bar’s annualmeeting in Raleigh.

Members of the bar are encouraged tonominate colleagues who have demonstratedoutstanding service to the profession. Thenomination form is available on the State Bar’swebsite, ncbar.gov. Please direct questions toPeter Bolac, [email protected] n

John B. McMillan Distinguished Service Award

B A R U P D A T E S

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 forher public service. She was a principal drafterof statutes that modernized the law of bothalimony and of adoption, and she co-foundeda domestic violence program that receivednational recognition by the American Bar.Reynolds authored a three-volume treatise onNorth Carolina family law that has becomethe authoritative source for law students,lawyers, and judges.

Wright is one of the nation’s best knowncriminal justice scholars. He is the co-author oftwo casebooks in criminal procedure and sen-tencing; his empirical research concentrates onthe work of criminal prosecutors. He is a boardmember of the Prosecution and Racial JusticeProject of the Vera Institute of Justice, and hasbeen an adviser or board member for FamiliesAgainst Mandatory Minimum Sentences(FAMM), North Carolina Prisoner LegalServices, Inc., and the Winston-SalemCitizens’ Police Review Board. Prior to joiningthe faculty, he was a trial attorney with the USDepartment of Justice. n

52 FALL 2014

At its July 24, 2014, meeting, the NorthCarolina State Bar Client Security FundBoard of Trustees approved payments of$250,137.86 to 11 applicants who sufferedfinancial losses due to the misconduct ofNorth 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 wasretained to handle a negligence claimagainst a nursing home that resulted in theclient's husband's death and personalinjury claims for the client and her twosons. Britt settled the matters and deposit-ed the settlement proceeds into his trustaccount, but failed to disburse some of thefunds prior to his trust account beingfrozen by the State Bar. Due to misappro-priation, Britt’s trust account balance isinsufficient to cover all of his clients’ obli-gations. Although Britt had depositedfunds in his lawyer's trust account to coverthe expected shortage, he agreed that hisclient should be reimbursed by the boardand be subrogated to the funds in hislawyer's trust account. Britt was disbarredon June 12, 2014.

2. An award of $72,576.08 to two for-mer clients of Sue E. Mako ofWilmington. The board determined thatMako was retained to handle the clients’personal injury claims. Mako settled thematters and deposited the settlement pro-ceeds into her trust account. At the time ofthe deposits, Mako knew that her trustaccount was short due to an unrelatedscam. Mako failed to make any disburse-ments from the proceeds for the benefit ofthe clients prior to the State Bar freezingMako’s trust account. Due to the shortagein her account caused by Mako’s disburse-ment against uncollected funds related tothe scam, and her dishonest act of failingto return missing funds to the trustaccount from money she earned after thescam, Mako’s trust account balance isinsufficient 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 wasretained to handle a client’s personal injuryclaim. Stratas settled the matter andretained a portion of the settlement pro-ceeds to resolve a subrogation lien. Stratasfailed to resolve the lien prior to being dis-barred. Due to misappropriation, Stratas’trust account balance was insufficient topay all his clients’ obligations. Stratas wasdisbarred on February 1, 2013. The boardpreviously reimbursed ten other Stratasclients a total of $152,215.78.

4. An award of $11,696.10 to a formerclient of Daniel L. Taylor of Troutman. Theboard determined that Taylor was retainedto prepare estate planning documents for aclient’s father. Taylor suffered a strokeshortly after meeting with the client andprior to the client signing a “nonrefund-able” fee agreement and paying the legalfee. Taylor failed to provide any valuablelegal services for the fee paid. Taylor diedon December 25, 2013.

5. An award of $11,746.10 to a formerclient of Daniel L. Taylor. The board deter-mined that Taylor was retained to prepareestate planning documents and provideasset protection services for the client andhis wife. The client signed two “nonrefund-able” fee agreements and paid the com-bined fee in full because time was of theessence to get his wife’s assets protected dueto her declining health. Despite being paidand having all the necessary information toprepare the documents, Taylor failed toproduce any documents for the client’s wifeprior to her death. Taylor failed to provideany valuable legal services for the fees paid.

6. An award of $5,000 to former clientsof Daniel L. Taylor. The board determinedthat Taylor was retained to handle theclient’s son’s petition for a contested casehearing before the Office of AdministrativeHearings (OAH). Taylor faxed the client'shandwritten petition, rather than one hewas retained to prepare, to OAH a day after

the filing deadline. Taylor failed to provideany valuable legal service for the clients.

7. An award of $6,000 to a former clientof Daniel L. Taylor. The board determinedthat Taylor was retained to prepare estateplanning documents and represent a clientin a petition for guardianship over her hus-band. The client signed Taylor’s “nonre-fundable” fee agreement and paid the feesfor the estate planning documents and rep-resentation in the guardianship proceeding.After preparing the estate planning docu-ments, filing the guardianship petition, andparticipating in the guardianship proceed-ing, Taylor requested an additional $6,000fee to complete the guardianship. Theclient paid the additional fee, but Taylorfailed to complete the guardianship. Taylorfailed to provide any valuable legal servicesfor the additional fee paid.

8. An award of $11,696.10 to a formerclient of Daniel L. Taylor. The board deter-mined that Taylor was retained to apply forMedicaid benefits and provide asset plan-ning services for the client’s father. Theclient signed a “nonrefundable” retaineragreement and paid the fees quoted. Taylornever 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 clientof Clyde Gary Triggs of Hildebran. Theboard determined that Triggs was retainedto handle a client’s domestic matter. Triggsfailed to provide any valuable legal servicesto the client prior to being disbarred. Triggswas disbarred on January 31, 2013.

10. An award of $1,266 to a formerclient of David A. Vesel of Raleigh. Theboard determined that Vesel was retainedto handle a client’s real estate closing. Veselfailed to deliver two disbursement checkson the client’s behalf prior to his trustaccount being frozen by the State Bar. Dueto misappropriation, Vesel’s trust accountbalance was insufficient to pay all hisclients’ obligations. Vesel was disbarred onJuly 5, 2013. The board previously paidone other Vesel client a total of $5,914.

B A R U P D A T E S

Client Security Fund Reimburses Victims

Charlotte attorneyMark Merritt wasselected by the StateBar's NominatingCommittee to standfor election to theoffice of vice-presi-dent of the NorthCarolina State Bar.The election will takeplace 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 theUniversity of Virginia and served as editorin chief of the Virginia Law Review. Afterlaw school he clerked on the Fifth CircuitCourt of Appeals for Judge John M.Wisdom. He returned to Charlotte and haspracticed law at Robinson Bradshaw &Hinson since 1983.

His professional activities include servingas treasurer and president of theMecklenburg County Bar, serving on theBoard of Directors and as president of LegalServices of Southern Piedmont, and serving

as chair of the North Carolina BarAssociation Antitrust Section Counsel.While a State Bar councilor he has served aschair of the Ethics Committee and of theLawyers Assistance Program. He has servedas a member of the Facilities, Grievance,Issues, and Authorized Practice Committees.He also served as chair of the SpecialCommittee on Ethics 2020.

Mark is a member of the AmericanCollege of Trial Lawyers and the InternationalSociety of Barristers.

He is married to Lindsay Merritt and hasthree children, Alex, Elizabeth, and Jay. n


Living with Blindness(cont.)

a multi-national, multi-racial family. We didnot have any ties to Ethiopia, but we bothhad friends and experiences that drew us toAfrica, generally. We also had friends whowent through the Ethiopian adoptionprocess before us, so that encouraged us togo that route. Thus, in May of 2012 webrought home our daughter Kalkidan (thenage four) and our son Rebuma (then 18months old).

Fatherhood has been a blast. My childrenreally help to keep me humble. They don’tcare where I work or who I represent, but arejust impressed that I have a job where thereis a candy dish and a soda fountain andwhere I get to talk on a phone that actuallyhas a cord, as opposed to the ubiquitoussmart phones that are all they’ve ever known.Coming home to fans who don’t keep trackof wins and losses or count billable hours isthe best part of every day.

I will say that fatherhood is one of thefew areas where I’ve found blindness to be

frustrating. There are things I’d like to beable to do as a dad—see my son’s goofy facialexpressions, watch my daughter dance andplay 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 amstill learning what it means to be blind in anew stage of life.

JG: In describing your disability, you usedthe phrase that sight for you is like “lookingat an elephant from six inches away”. Inmany 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 tosee what really matters beyond the courtdeadlines, case outcomes, and career goalsthat require so much daily energy. As I men-tioned before, though, living with blindnesshas given me a broader perspective about theinter-connectedness of people and theimportance of relationships. That perspec-tive has not always made me a more san-guine or compassionate person, but, as I’vegrown up, started a family and a career, Ihave been able to see and appreciate just

how many people contributed to getting meto where I am in life: a dad who encouragedme to work hard and compete; a mom who,many nights, came home from work only tospend several hours reading textbooks to mewhen my high-school couldn’t provide themin accessible formats; teachers and coacheswho worked creatively to teach me theirsubjects and sports; friends who rowed andtrained with me to prepare me for theParalympics, though there was no potentialfor personal glory for them; colleagues whotook the risk of hiring a blind person andwho provide the support needed to enableme to do my job; and a wife and kids wholove and encourage me without regard topersonal or professional successes.Understanding how much I have benefitedfrom the generosity of other people inspiresboth confidence and humility, and for mehas been the best medicine against the self-absorption that can be so alluring. n

John Gehring, a former State Bar councilorand chair of the Publications Committee, isnow semi-retired, which means that he “worksless and enjoys it more.”

11. An award of $100,000 to a formerclient of W. Darrell Whitley of Lexington.The board determined that Whitley wasretained to create and administer a trust fora client. Within two weeks of the client’s

funds being deposited into his trustaccount, Whitley misappropriated virtuallyall of the funds. Due to misappropriation,Whitley’s trust account was insufficient topay all of his clients’ obligations. Whitley

died on December 6, 2011. The board pre-viously reimbursed several other Whitleyclients and applicants a total of$664,096.74. n

Merritt Nominated as Vice-President

The North Carolina State Bar2013 2012

AssetsCash 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 EquityCurrent 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 ExpensesDues $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) 837,569Net income $484,368 $1,824,106

The NC State Bar Plan for Interest onLawyers' Trust Accounts (IOLTA)

2013 2012AssetsCash 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 EquityGrants 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 ExpensesInterest 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 9,568Net income (loss) $(212,292) $575,171

Board of Client Security Fund2013 2012

AssetsCash and cash equivalents $1,390,739 $1,668,369 Other assets (790) (446)

$1,389,949 $1,667,923 Liabilities and Fund EquityCurrent liabilities $20,269 $17,662 Fund equity-retained earnings 1,370,018 1,650,261

$1,390,287 $1,667,923 Revenues and ExpensesOperating 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 Education2013 2012

AssetsCash and cash equivalents $287,066 $243,708 Other assets 173,802 191,853

$460,868 $435,561 Liabilities and Fund EquityCurrent liabilities 116,822 69,520 Fund equity-retained earnings 344,046 366,041

$460,868 $435,561 Revenues and ExpensesOperating 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 Specialization2013 2012

AssetsCash and cash equivalents $191,899 $180,394 Other assets - 728

$191,899 $181,122 Liabilities and Fund EquityCurrent liabilities 15,059 8,162

Fund equity-retained earnings 176,840 172,960

$191,899 $181,122 Revenues and ExpensesOperating 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 onProfessionalism

2013 2012AssetsCash and cash equivalents $221,068 $196,053 Other assets 100,762 100,527

$321,830 $296,580 Liabilities and Fund EquityCurrent liabilities 522 90 Fund equity-retained earnings 321,308 296,490

$321,830 $296,580 Revenues and ExpensesOperating 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 Certification2013 2012

AssetsCash and cash equivalents $402,611 $348,099 Other assets 7,050 -

$409,661 $348,099 Liabilities and Fund EquityCurrent liabilities - accounts payable 7,275 7,193 Fund equity-retained earnings 402,386 340,906

$409,661 $348,099 Revenues and ExpensesOperating revenues-fees $245,575 $257,130 Operating expenses (184,083) (205,688)Non-operating revenues (12) 155 Net income (loss) $61,480 $51,597

54 FALL 2014

The North Carolina State Bar and Affiliated EntitiesSelected Financial Data

The North Carolina State BarPO Box 25908Raleigh, NC 27611

Fall 2014

journal 19,3_Layout 1 - North Carolina State Bar

Documents

Transcript of journal 19,3_Layout 1 - North Carolina State Bar