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JOURNALFALL

2018

THE NORTH CAROLINA STATE BAR

IN THIS ISSUE

Freedom for Sale page 8A New Approach to Jury Instructions page 12

The CJCP: Two Decades of Promoting Professionalism page 24

THENORTH CAROLINA

STATE BAR

JOURNALFall 2018

Volume 23, Number 3

EditorJennifer R. Duncan

© Copyright 2018 by the North CarolinaState Bar. All rights reserved. Periodicalspostage paid at Raleigh, NC, and additionaloffices. Opinions expressed by contributorsare not necessarily those of the NorthCarolina State Bar. POSTMASTER: Sendaddress changes to the North Carolina StateBar, PO Box 25908, Raleigh, NC 27611.The North Carolina Bar Journal invites thesubmission of unsolicited, original articles,essays, and book reviews. Submissions maybe made by mail or email ([email protected]) to the editor. Publishing and edi-torial decisions are based on the PublicationsCommittee’s and the editor’s judgment ofthe quality of the writing, the timeliness ofthe article, and the potential interest to thereaders of the Journal. The Journal reservesthe right to edit all manuscripts. The NorthCarolina State Bar Journal (ISSN 10928626)is published four times per year in March,June, September, and December under thedirection and supervision of the council ofthe North Carolina State Bar, PO Box25908, Raleigh, NC 27611. Member rate of$6.00 per year is included in dues.Nonmember rates $10.73 per year. Singlecopies $5.36. The Lawyer’s Handbook$16.09. Advertising rates available uponrequest. Direct inquiries to Director ofCommunications, the North Carolina StateBar, PO Box 25908, Raleigh, NorthCarolina 27611, tel. (919) 828-4620.

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F E A T U R E S

8 Freedom for SaleBy David E. Clark

12 A New Approach: Jury Instruction on the Decreased Reliability of Cross-Racial IdentificationsBy Alyson A. Grine

16 History and Comparison of Judicial Selection ProcessesBy Judge John M. Tyson

22 As I Leave the Bench, What Troubles Me about Trial LawyersBy The Honorable Donald W. Stephens

24 The CJCP: Two Decades of Promoting the Shared Values of ProfessionalismBy Lisa M. Sheppard

27 Five Ways to Cultivate Creativity Alongside Practicing LawBy Heather Bell Adams

3THE NORTH CAROLINA STATE BAR JOURNAL

D E P A R T M E N T S

5 President’s Message

6 State Bar Outlook

28 The Disciplinary Department

30 Pathways to Wellbeing

33 IOLTA Update

34 Legal Specialization

36 Legal Ethics

38 Lawyer Assistance Program

39 Proposed Ethics Opinions

42 Rule Amendments

B A R U P D A T E S

49 In Memoriam

50 Client Security Fund

51 Christy Nominated as Vice-

President

52 Distinguished Service Award

53 Law School Briefs

OfficersJohn M. Silverstein, RaleighPresident 2017-2018

G. Gray Wilson, Winston-SalemPresident-Elect 2017-2018

C. Colon Willoughby Jr., RaleighVice President 2017-2018

L. Thomas Lunsford II, Chapel HillSecretary-Treasurer

Mark W. Merritt, Charlotte/Chapel HillPast-President 2017-2018

CouncilorsBy Judicial District1: C. Everett Thompson II, Elizabeth

City2: G. Thomas Davis Jr., Swan

Quarter3A: Charles R. Hardee, Greenville3B: Debra L. Massie, Beaufort4: Robert W. Detwiler, Jacksonville5: W. Allen Cobb Jr., Wilmington6: W. Rob Lewis II, Ahoskie7: Randall B. Pridgen, Rocky Mount8: C. Branson Vickory III, Goldsboro9: Paul J. Stainback, Henderson9A: Alan S. Hicks, Roxboro10: Heidi C. Bloom, Raleigh

Walter E. Brock Jr., RaleighNicholas J. Dombalis II, RaleighTheodore C. Edwards II, RaleighKatherine Ann Frye, RaleighRobert Rader, RaleighDonna R. Rascoe, RaleighWarren Savage, Raleigh

11A: Eddie S. Winstead III, Sanford11B: Marcia H. Armstrong, Smithfield12: Lonnie M. Player Jr., Fayetteville

13: Michael R. Ramos, Shallotte14: Dorothy Hairston Mitchell,

DurhamWilliam S. Mills, Durham

15A: Charles E. Davis, Mebane15B: Charles Gordon Brown, Chapel Hill16A: Terry R. Garner, Laurinburg16B: David F. Branch Jr., Lumberton16C: Richard Buckner, Rockingham17A: Matthew W. Smith, Eden17B: Thomas W. Anderson, Pilot

Mountain18: Barbara R. Christy, Greensboro

Stephen E. Robertson, Greensboro18H: Raymond A. Bretzmann, High

Point19A: Herbert White, Concord19B: Clark R. Bell, Asheboro19C: Darrin D. Jordan, Salisbury19D: Richard Costanza, Southern Pines20A: John Webster, Albemarle20B: H. Ligon Bundy, Monroe21: Michael L. Robinson, Winston-

SalemKevin G. Williams, Winston-Salem

22A: Kimberly S. Taylor, Taylorsville22B: Sally Strohacker, Mocksville23: John S. Willardson, Wilkesboro24: Andrea N. Capua, Boone25: M. Alan LeCroy, Morganton26: David N. Allen, Charlotte

Robert C. Bowers, CharlotteA. Todd Brown, CharlotteMark P. Henriques, CharlotteDewitt McCarley, CharlotteNancy Black Norelli, CharlotteEben T. Rawls, Charlotte

27A: Timothy L. Patti, Gastonia27B: Rebecca J. Pomeroy, Lincolnton28: Anna Hamrick, Asheville29A: H. Russell Neighbors, Marion29B: Christopher S. Stepp,

Hendersonville30: Gerald R. Collins Jr., Murphy

Public MembersThomas W. Elkins, RaleighDr. Joseph E. Johnson, GreensboroMohan Venkataraman, Morrisville

Executive DirectorL. Thomas Lunsford II

Assistant Executive DirectorAlice Neece Mine

CounselKatherine Jean

EditorJennifer R. Duncan

Publications Editorial BoardDarrin D. Jordan, ChairNancy Black Norelli, Vice ChairPhillip Bantz (Advisory Member)Richard G. BucknerAndrea CapuaMargaret Dickson (Advisory Member)John Gehring (Advisory Member)Ashley London (Advisory Member)Stephen E. RobertsonChristopher S. SteppJohn Webster

4 FALL 2018

In this era of the 24-hour newscycle, “breaking news” inducesbreathless anticipation over whatdramatic change in the world order

has occurred to both interrupt and impactour otherwise mundane lives. At the NorthCarolina State Bar, any change in the exec-utive suite qualifies for that classification.After 38 years of dedicatedservice to the State Bar,including more than 26years as executive director,Tom Lunsford will be relin-quishing his duties effectivewith the Annual Meeting inOctober, and he will beretiring at the end of thisyear. Alice Mine, our assis-tant director with more than25 years’ experience in thatrole, is poised to succeedTom. Brian Oten hasalready joined the executive team as of July1, moving from his position as a staff coun-sel primarily handling grievance files toassistant director responsible for many ofAlice’s former program duties, including theEthics Committee. And effective October1, Peter Bolac, the only person alive withthe ability to both adroitly handle legislativeaffairs and clearly and concisely explaintrust account reconciliation rules, willbecome the assistant director handling mostof Alice’s former management duties. Toensure the proper place of continuity in theworkplace, Katherine Jean will remain ascounsel.

Fortunately, there are three brightlyshining silver linings in the clouds accom-panying Tom’s departure. First, he will onlybe a short distance away in Chapel Hill,where we can continue to mine pricelessdeposits of institutional knowledge, andperhaps even convince him to prolong hiscontributions to the legal profession inNorth Carolina by continuing his erudite

and literate observations that have gracedthe pages of this Journal. Second, the man-agement team that will be in place is, asnoted, experienced, talented, and preparedto hit the ground running. Third, workingthrough the transition in leadership will bethe responsibility of my successors, GrayWilson, Colon Willoughby, Barbara

Christy, and their progeny,not mine.

This rare changing of theguard accompanies theannual reconstitution of theState Bar Council and itsofficers. Most bar councilorsserve three consecutivethree-year terms, which arestaggered so that all 61 elect-ed councilors do not haveterms expiring the sameyear. While the State Bar isenergized each January with

a new class of councilors who invariablybring fresh ideas and new perspectives toour deliberations, it also means losing thewise counsel of their predecessors as we bidthem a reluctant farewell. On the eveningbefore our annual dinner in October, wewill note the valuable contributions ofdeparting councilors Bob Detwiler(Jacksonville), Nick Dombalis (Raleigh),Darrin Jordan (Salisbury), Nancy Norelli(Charlotte), Lonnie Player (Fayetteville),Randy Pridgen (Rocky Mount), and JudgeMike Robinson (Winston-Salem). BarbaraChristy (Greensboro) will also be retiring asa councilor, but her service to the State Barwill continue when she is installed as vice-president of the State Bar by Chief JusticeMark Martin at our annual meeting.

The business of the State Bar is conduct-ed through standing and special commit-tees, and our retiring councilors have servedwith distinction as committee chairs orvice-chairs, and as valued members of virtu-ally every committee in existence at the

State Bar during their terms. When theybegan their service as councilors in 2010,the State Bar headquarters building was noteven large enough to accommodate theirorientation. In contrast, their last meetingas State Bar councilors will take place in amulti-purpose room that will accommodatethe entire 68-member council, State Barstaff, and visitors. The State Bar’s progres-sion from rudimentary office space to astate-of-the art headquarters building is ametaphor for the transition of the individu-als mentioned above from “rookies” toessential cogs in the workings of the StateBar. As Bar councilors, we share respect andgratitude—and most importantly, friend-ship—that extends well beyond the end ofour terms, and we will miss them and theirmany contributions.

It is even more difficult to articulatewhat Tom Lunsford has meant to the NorthCarolina State Bar. Tom’s tenure has beenmore than four times longer than the nineyears most Bar councilors serve, and threetimes longer than the 13 years most officersserve. Tom has visited each of NorthCarolina’s Judicial Districts (now 45) severaltimes. Tom has witnessed and led the StateBar’s long journey from a state office build-ing that housed a handful of employees, tothe State Bar’s own building on theFayetteville Street Mall, and finally to anarchitecturally significant headquarters thatcontains adequate space and technology forthe State Bar’s 90+ staff members to admin-ister the practice of law for the more than29,000 attorneys licensed in NorthCarolina. It is more than fitting that Tomhas spent the final few years of his career inthe executive director’s office of the build-ing that will be an important part of hislegacy.

My experience in serving as an officer ofthe North Carolina State Bar has been

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

Breaking NewsB Y J O H N M . S I L V E R S T E I N

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


If you’ve been paying any atten-tion at all, you know that mydays as the State Bar’s executivedirector are numbered. Last sum-mer, in a weak moment, I gave

my notice and advised the agency that Iwould be resigning at the end of the cur-rent year in order to effectuate my retire-ment. When no one beggedme to reconsider, I realizedthat I had overplayed myhand and was, like my fic-tional hero Barney Fife, onthe verge of being “sweptinto the dustbin of history.”Exit, Tom Lunsford. Myonly hope in the wake ofsuch folly is that you, myfaithful readers, will some-how learn from my mistakeand be better for it.

The standard questionfor most people in my position is, ofcourse, what do you plan to do after youretire? I wish I knew. I recently inventoriedmy skills and interests to see how I mightmost effectively use my leisure time. I dis-covered that after 38 years on the job, I hadbecome very accomplished at delegating,making small talk at cocktail parties, andwriting pithy essays in the Bar’s Journal. Sofar so good! I then imagined how I mightleverage those talents in pursuit of my realpassions—the Tar Heels, the Andy GriffithShow, and chinchilla ranching.Surprisingly, the anticipated epiphanies areyet to be realized, and I continue to lan-guish without direction or purpose.Indeed, it would appear that I am, like for-mer race car driver Danica Patrick, on theverge of retiring for no reason other than towork on my “personal brand.”

Unlike Danica, however, I have a pro-fessional license and my personal pride toconsider. Although I haven’t practiced inmany years and am absolutely uninsurable,

I am nevertheless an active member ingood standing of the North Carolina StateBar. As such, I am privileged to style myselfas an attorney, participate in district barelections, and receive the State Bar’s quar-terly magazine. Those highly valued pre-rogatives are offset, it must be said, by sev-eral not inconsiderable obligations of

membership, including lia-bility for dues and therequirement of attending,and paying for, 12 hours ofapproved but increasinglyirrelevant continuing legaleducation each year.Obviously, there is a finebalance to be struckbetween cost and benefit forthe aging attorney. And thatcalculation finds its mostcogent and sublime expres-sion in answer to the ques-

tion that now faces me and countless othersurvivors of the Baby Boom, namely:“Should I go inactive?”

Now, I would not presume to answerthat question for my entire demographiccohort. Everyone’s circumstances are differ-ent, and most lawyers of my vintage seemto have a more coherent plan for life afterthe law than I do. If you are one of thosefolks, you can stop reading now. If, on theother hand, you, like me, are pretty surethat any decision you make will be wrongand need to be reversed, you should soldieron for at least a few more paragraphs.

Here’s the good news. The ink neverdries on a grant of inactive status. Underthe State Bar’s administrative rules, it isabsolutely possible to “retire,” for whateverreason, and then to be reinstated by the BarCouncil. In short, if you guess wrong aboutwhether you should hang it up and want torejoin the club, you’re entitled to a “do-over” if you can satisfy a few conditions,mostly having to do with settling financial

accounts and getting current on CLE. Thisassumes that you file your petition for rein-statement within seven years of the timeyou started your misbegotten sabbatical.After seven years you can still be reinstated,but only if you sit for and pass the barexam—an exercise that would almost cer-tainly call into question your sanity and fit-ness to be licensed.

Actually, fitness is the aspect of this sortof transaction that interests me the most.The rules require that an applicant seekingreinstatement from inactive status demon-strate that he or she has the requisite “char-acter and fitness to practice.” That is to say,“[T]he member must have the moral qual-ifications, competency, and learning in thelaw required for admission to practice lawin the state of North Carolina, and mustshow that the member’s resumption of thepractice of law within this state will be nei-ther detrimental to the integrity and stand-ing of the Bar or the administration of jus-tice nor subversive of the public interest.”The same is required of an applicant seek-ing to be reinstated from administrativesuspension occasioned by failure to satisfyan obligation of membership, such as fail-ing to meet the CLE requirements.

Quite appropriately, the burden of proofis on the applicant. For most people, this isnot, and has never been, a problem.Statistically speaking, it is extremely rare foranyone without a recent felony convictionto be denied reinstatement. That being thecase, you would suppose that the oddswould be in my favor. But, unlike mostapplicants, I do have a “record,” in that Ihave, during the past 20 years, publishedmore than 70 articles in the Bar Journal, agreat many of which have contained japes,exaggerations, and fictions that some mayhave found inappropriate for such a seriouspublication. Is it possible that in my vainattempts to amuse, I have written thepetards upon which I might now be hoisted?

6 FALL 2018

What If I Don’t Like Being Retired?B Y L . T H O M A S L U N S F O R D I I

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

To answer that question, I have justcompleted a quick inspection of the so-called “long form” reinstatement petitionon the State Bar’s website. I was greatlyrelieved to find that journalistic offenses arenot referenced in that questionnaire.However, there are queries about whetherthe applicant has been charged with fraudin any legal proceeding (negative, in mycase); has failed to pay his taxes (also nega-tive); has been declared legally incompetent(negative); has been impaired as a result ofa mental, emotional, or psychiatric condi-tion (probably negative); has been impairedas a result of the use of alcohol or drugs(impaired would be too strong a word); orhas been “told” that he was impaired as aresult of a mental, emotional, or psychiatricdisorder (definitely).1 Since I can probablyget an affidavit from the psychiatrist towhom I am married attesting to the factthat calling someone crazy doesn’t necessar-ily make it so, it seems possible that I mightbe able to squeak through the reinstate-ment process. Good for me.

Interestingly, applicants for reinstate-ment from disciplinary suspension are gen-erally not required to prove that they havegood character. Unlike retired bar execu-tives and CLE derelicts, lawyers who havebeen suspended for serious ethical trans-gressions are not required by rule todemonstrate that they possess the “moralqualifications” to practice law. They mustsatisfy certain administrative requirementsrelating to the winding down of their prac-tices, and they must fulfill reasonable con-ditions precedent contained in theDisciplinary Hearing Commission’s orderimposing their suspensions, like makingrestitution or cooperating with the LawyerAssistance Program, but they are not typi-cally compelled to prove that they havegood character. It may be, of course, thathaving “done their time,” they are pre-sumed rehabilitated or at least chastened tothe point where the likelihood of furtherindiscretion is acceptably small. Or it maysimply be an anomaly.

It is worth noting in this connectionthat disbarred lawyers, in contrast to thosewho have been merely suspended for a def-inite period not to exceed five years, do,under the rules, have to prove “proper ref-ormation of character” in order to be eligi-ble for reinstatement. In this they are ratherlike retired bar executives who tire of chin-

chilla ranching and want to become activemembers again. Nothing anomalous aboutthat. It makes perfect sense.

I would like to make one last observa-tion as to how the determination of charac-ter and fitness relates to reinstatement. Asnoted above, applicants for reinstatementfrom administrative suspension arerequired to prove good character. There isan exception to the rule, however, for thosewho are willing and able to satisfy a delin-quent membership obligation with 30 daysof having been served with an order of sus-pension. In such cases the order is preclud-ed from becoming effective and no suspen-sion is deemed to have occurred. Sincethere was never any suspension, there is noneed to apply for reinstatement. From anadministrative standpoint, this is an excel-lent rule. It incentivizes compliance, albeitbelated, and it obviates the necessity of fur-ther costly and time consuming proceed-ings for everyone. It is curious, though, inregard to the matter of character and fit-ness. One wonders what it is about the30th day post-service that should relieve usof our concern about the subject lawyer’sbona fides. Is there a point along the tempo-ral continuum where the character issueripens? And is that day 31? If late paymentof dues warrants a C&F inquiry a monthafter service, is such an inquiry somehowless necessary 29 days after service? Maybethere’s no anomaly here, just the sort ofbenign arbitrariness that accompanies mostregulatory line-drawing, but I’m inclinedto think we ought to take another look atthis rule—and maybe others that relate toreinstatement.

That’s the point of this essay, by the way.I think the reinstatement rules could standsome scrutiny. Rules review is somethingwe engage in quite routinely at the StateBar. We know the value of introspectionand we never tire of it. We have recentlycompleted a very extensive review of ourdisciplinary system in order to make surethat our rules, policies, and proceduresmake sense and are working well. We arecurrently engaged in a substantive review ofthe rules relating to lawyer advertising. Nosooner had the ABA proposed a new set ofrules concerning commercial speech thanour leadership initiated an internal study. Ithink the rules concerning reinstatementare also deserving of reconsideration, espe-cially where the matter of character and fit-

ness is concerned. Frankly, I’d feel a lot bet-ter about going inactive, and then changingmy mind, if I didn’t think I’d ever berequired to prove my good character. It’snot that I’m likely to engage in journalisticfraud again, or chinchilla ranching for thatmatter, but I’d like to keep all my optionsopen. n

L. Thomas Lunsford II is the executivedirector of the North Carolina State Bar.

Endnote1. Several people have told me that I am crazy for

quitting my job.

THE NORTH CAROLINA STATE BAR JOURNAL 7

President’s Message (cont.)enhanced by the opportunity to work close-ly with Tom. The way I have been wel-comed throughout North Carolina as pres-ident of the State Bar is a testament to Tomand the work of the outstanding staff he hasassembled. Fortunately, we will not miss abeat with Alice, Peter, Brian, and Katherineon our executive team, with Gray, Colon,and Barbara as our officers, and with thesupport and guidance of our outstandingState Bar Council.

As my term as president concludes, Iwant to thank the officers with whom Iserved—Ron Gibson, Margaret Hunt, andMark Merritt—for the lessons in leadershipthat made a great impression on me. On apersonal note, this year would not havebeen nearly as enjoyable as it has been forme without the patience and understandingof the members of my firm—Howard andKeith Satisky and David Gadd—and espe-cially my long-suffering wife, Leslie, who inaddition to being my greatest asset, hasbecome devoted to the State Bar as well.Thank you for the privilege of not onlyserving as president this year, but also forthe opportunity to meet and work with somany good people throughout the state,and to make such good friends over thecourse of my time on the council. Mydeparting wish for the State Bar is that therewon’t be any more breaking news for quitesome time. n

John Silverstein is a partner with theRaleigh firm of Satisky & Silverstein, LLP.

Freedom for SaleB Y D A V I D E . C L A R K

Constructed in 1973, the New

Guilford County courthouse

has been showing its age for

the better part of the past

two decades. Like many buildings from this era, the facade

is a harsh block of colorless stone with slits inserted for

windows that don’t open. The architectural style outside,

known as Brutalism,1 seems to have infected much of the criminal justice treatment of indigent defendants inside.

Bond court is held in Courtroom 2C,which sits on the southwest side of thebuilding. Tuesday through Friday at 2 PM,the small courtroom fills with defense attor-neys and prosecutors in front of the bar, andfriends and family of inmates and allegedvictims behind the bar—all waiting for theirchance to argue that their particular inmateshould or should not be allowed pretrialrelease while their case works its waythrough the legal system.

Guilford County Criminal Court oper-ates under a court order known as “pretrialrelease policies in the eighteenth judicial dis-trict.”2 The document sets out “suggestedbond amounts” for every violation of thepenal code, from local ordinances, like

allowing weeds to grow over 12 inches highin your yard, to major felonies, like murderor drug trafficking.

It was in this stark setting earlier this yearthat Emorbridge Poole and David Stewartgot their welcome to the world of courtapproved pretrial release bail policies—where those with money can buy their free-dom, while the less fortunate languish inlocal jails for the exact same allegation;where indigent citizens spend more time inlocal jails than the law allows for theiralleged crime simply because they don’t havethe money to purchase their freedom; wherepoor, non-violent misdemeanants remain injail, while rich, violent felons are released;where a person’s access to liberty is based

exclusively on their ability to pay a pretrialbond.

On February 27, 2018, Mr. Poole wascharged with trespassing while intoxicated ata local gas station and knocking over a storerack, all misdemeanor offenses.3 One weeklater, Mr. Stewart was charged with a violentfelony in connection to shots from a “semi-automatic handgun” being fired into a con-venience store as well as resisting arrest.4

Unemployed with no resources, Mr.Poole was appointed a public defender.Despite the relative minor nature of thecharges and the lack of any finding that hewas a danger to himself or others, that hewould not appear in court as ordered, or thathe would intimidate potential witnesses,5 he

FALL 20188

©iStockphoto.com

/baona


was denied release until he paid the court$500 and was subsequently incarcerated inthe local jail to await trial. On the other endof the spectrum, facing charges of feloniouslyconspiring to shoot a handgun into occupiedproperty and resisting arrest,6 Mr. Stewartwas released from custody after posting a$5,000 bond.

Mr. Poole provided the court with asworn affidavit indicating that he had “$0”“monthly income,” “$0” “cash on hand andin bank accounts,” and “$0” “assets,”7 yet heremained incarcerated for three weeksbecause he didn’t have $500 to purchase hisfreedom. This came at a cost of $82 pernight to the taxpayers of Guilford County,for a total of over $1,500. Meanwhile, Mr.Stewart, whose family was able to post his$5,000 bond, was released immediately tolive under minimal judicial supervision inGreensboro, despite the violent nature of hischarges.

The story of defendants like Mr. Pooleand Mr. Stewart is all too common in court-houses across North Carolina. In this articlewe will explore the problems posed by thecurrent haphazard state of pretrial releasepolicies in North Carolina. We will explainhow these seemingly arbitrary bail policies,which allow pretrial bail to act as an illegiti-mate form of preventive detention, violatesthe Fourteenth Amendment of the UnitedStates Constitution as well as Article I,Section 27, of the North CarolinaConstitution.8 We will conclude the articleby making suggestions for reform thatrequire pretrial detention to be based onobjective evidentiary factors such as whethera defendant is a flight risk or a danger, ratherthan how wealthy the defendant is, that willbring North Carolina back into compliancewith state and federal law.

Introduction“In our society, liberty is the norm, and

detention prior to trial or without trial is thecarefully limited exception.”9 Two bedrockprinciples of constitutional law guide anypretrial detention analysis. In the words ofthe U . Supreme Court: “[T]he fairness ofrelations between the criminal defendant andthe State” is analyzed under the Due ProcessClause, while “the question whether the Statehas invidiously denied one class of defen-dants a substantial benefit available to anoth-er class of defendants” is analyzed under theEqual Protection Clause.10

I. Constitutional Impetus for BailReform

In applying this legal framework to a ques-tion of pretrial release for a criminal defen-dant, the Fifth Circuit Court of Appeals heldas far back as 1978 that while “[u]tilization ofa master bond schedule provides speedy andconvenient release for those who have no dif-ficulty in meeting its requirements, [t]heincarceration of those who cannot, withoutmeaningful consideration of other possiblealternatives, infringes on both due processand equal protection requirements.”11

Several federal district courts have alsoapplied this reasoning to invalidate bond sys-tems like those in North Carolina that havethe effect of imprisoning indigent defendantssolely because they cannot afford bail.12

One such example is Jones v. City ofClanton. In 2015, the city of Clanton,Alabama, used a bail schedule much like theone used in Guilford County to set bail inmisdemeanor cases. Under this bail schedule,bail was set at $500 for each misdemeanorcharge. Thus, defendant Christy Varden wasgiven a $2,000 bail for four misdemeanorcharges. When she couldn’t make the bail,she was required to wait in jail until her trial.In a subsequent lawsuit alleging that thecity’s bail policies violated Ms. Varden’s con-stitutional rights, the court ruled unequivo-cally: “[U]se of a secured bail schedule todetain a person after arrest, without an indi-vidualized hearing regarding the person’sindigence and the need for bail or alterna-tives to bail, violates the Due Process Clauseof the Fourteenth Amendment.”13

More recently, in Odonnell v. HarrisCounty, 882 F.3d 528 (5th Cir. 2018), theplaintiffs brought a § 1983 action,14 allegingthat Harris County’s system for setting bailfor indigent misdemeanor defendants violat-ed both Texas statutory law and constitution-al law and the Equal Protection and DueProcess Clauses of the FourteenthAmendment.15

The Texas Code requires court officials toconduct an individualized review when set-ting bail, basing decisions on factors such asability to pay, the charge, and communitysafety.16 However, the district court foundthat these individualized assessments do notactually occur in practice.17 The districtcourt concluded that the county violatedboth the procedural due process rights andthe equal protection rights of indigent defen-dants, and granted the plaintiff ’s motion for

a preliminary injunction.18

On appeal, the Fifth Circuit affirmed thedistrict court’s ruling.19 With regard to dueprocess, the court concluded that the proce-dure used in Texas did not sufficiently pro-tect indigent defendants from magistratesimposing bail as an “instrument of oppres-sion”20 and thus violated the plaintiffs’ dueprocess rights.21

With respect to the equal protectionclaim, the court emphasized that the county’spolicies and procedures violated the EqualProtection Clause, both because of “their dis-parate impact” on indigent defendants,22 andbecause the county’s custom and practice pur-posefully “detain[ed] misdemeanor defen-dants before trial who are otherwise eligiblefor release, but whose indigence makes themunable to pay secured financial conditions ofrelease.”23 The court conceded that ordinari-ly, “[n]either prisoners nor indigents consti-tute a suspect class.”24 However, the courtemphasized that indigents do receive height-ened scrutiny where two conditions are met:(1) “because of their impecunity they werecompletely unable to pay for some desiredbenefit,” and (2) “as a consequence, they sus-tained an absolute deprivation of a meaning-ful opportunity to enjoy that benefit.”25

Under this framework, the court found thatindigent misdemeanor defendants were in

Five Reasons for Bail BondReform in North Carolina

1. Money bail is an unfair and inef-fective tool, whether intended to achievecommunity safety or to assure a defen-dant’s appearance at trial.

2. Money bail creates a two-tiercriminal justice system—one for thosewith money and another for those with-out.

3. Money bail does not ensure deten-tion of the most dangerous defendants,but rather leads to detention of thepoorest defendants.

4. Pretrial detention of non-danger-ous defendants is costly to taxpayers andan inefficient use of limited criminal jus-tice resources.

5. Detaining people on the basis oftheir wealth is unconstitutional underthe Due Process and Equal ProtectionClauses of the Fourteenth Amendment.

fact unable to pay secured bail to obtain pre-trial release, and as a result they sustained anabsolute deprivation of “freedom from incar-ceration.”26 Thus, the court concluded thatthe county’s use of secured bail also violatedthe Equal Protection Clause.27

Similarly, North Carolina courts haveheld that failure to provide a criminal defen-dant with a meaningful opportunity for pre-trial release can result in a due process viola-tion.28 For example, in State v. Thompson,29

the defendant alleged that N.C. Gen. Stat. §15-A-534.1(b) as applied violated his proce-dural due process rights when a magistratescheduled his pretrial release hearing exactly48 hours after commitment, even thoughthere were judges available to hold an earlierhearing.30

In determining whether the delay violateddue process, the court began by noting that“it is beyond question that the private interestat stake, liberty, is a fundamental right.”31

Specifically, the “traditional right to freedombefore conviction permits the unhamperedpreparation of a defense, and serves to pre-vent the infliction of punishment prior toconviction.”32 The Court based its recogni-tion of the right to freedom prior to trial inthe “principle that there is a presumption ofinnocence in favor of the accused [which] isthe undoubted law, axiomatic and elemen-tary, and...lies at the foundation of theadministration of our criminal law.”33 Next,the Court concluded that once a judgebecame available, “further delay in providingthis hearing did not serve any underlyinginterest of the State.”34 Because Mr.Thompson had a fundamental liberty interestin pretrial release and there was no legitimatestate interest to be served by the delay, theSupreme Court of North Carolina held that“the application of N.C. Gen. Stat. § 15A-534.1(b) violated Thompson’s proceduraldue process rights.”35

II: Seizing the momentum for reformin North Carolina

Although money bail has been deeplyentrenched in North Carolina for decades,successful litigation around the countrychallenging the constitutionality of wealth-based pretrial release makes the momentripe for bail reform in North Carolina.While advocates of the money bail systemargue that it is a “well-founded tradition”36

that “allows individuals of all financialmeans to leverage their social networks and

community ties to obtain pretrial release,”they fail to recognize that tradition is not arational reason to detain non-threateningindigent defendants.37 It also ignores thefact that not every defendant has the benefitof a robust social network or community tiesthat can assist in such times of need.

By definition, most indigent defendantsdo not have sufficient financial means topost bail. Instead of allowing wealthy defen-dants—even those facing charges of violentcrimes—to purchase their freedom throughmoney bail while poor defendants sit in jailfor lesser crimes, North Carolina must stopfocusing on suggested bond amounts38 forparticular crimes and begin focusing on eachcase and each defendant objectively andindividually. This change in focus wouldallow North Carolina magistrates and judgesto pay attention to not only the criminalallegation, but also to other significant fac-tors, such as whether the defendant is aflight risk or a danger to themselves or thecommunity, and, importantly, to the defen-dant’s financial ability to post money bail.This reform would also allow the court sys-tem to balance its interest in securing thedefendant’s attendance and the defendant’sown interest of pretrial release.

Not only does unnecessary pretrialdetention adversely affect the defendant, it isalso financially burdensome on the state andits taxpayers. Pretrial detention is both costlyand inefficient—especially when alternativeoptions like properly managed pretrialrelease programs can ensure public safetyand the appearance of defendants incourt.39 Changing how North Carolinaassesses who is released and who has a bondset is just the beginning to reforming the bailbond system.

In addition to changing how the systeminitially decides which defendants have abond set and which are detained, NorthCarolina should also implement alternativesto monetary bail or incarceration, such aspretrial release programs.

Some North Carolina counties, such asWake, Forsyth, and Alexander, already usepretrial release programs.40 One of theseprograms is run by a nonprofit calledReEntry, Inc. ReEntry’s goal is to divert allappropriate incarcerated individuals frompretrial detention to supervision in its pretri-al release program.41 This not only saves thecounty the cost of pretrial detention, it alsoassures community safety by strict monitor-

ing of released defendants, and allows thosedefendants to move on with their lives whilewaiting for their case to be resolved.

ReEntry, like other pretrial service pro-grams, uses a risk assessment tool in order tomake recommendations to judicialofficials.42 The judge then has the final deci-sion as to whether the defendant can bereleased into the program.43 Of course,while risk-assessment is significantly fairer toindigent defendants than is money bail,these tools must be used with care. Judicialofficials must make sure that the pretrialservice units that use them are qualified andtrained, and that the motivation is there tomake sure everyone is treated with fairnessand consistency.

ReEntry is one of around 30 such pro-grams currently operating in North Carolina.All of these pretrial release programs havevarying degrees and methods of supervision.Some of these methods include requiring thedefendant to check in physically or by tele-phone, to complete drug tests, and to be sub-jected to mandatory electronic monitoring.44

Ultimately, if risk assessment and pretrialrelease programs are to be accepted in NorthCarolina, these programs will need to be stan-dardized so that all North Carolinians aretreated equally. The goal of diverting qualify-ing (non-dangerous) defendants from jailwhen they would otherwise not be able toafford bond is admirable and should be pur-sued in North Carolina.45

ConclusionIn North Carolina, as elsewhere in the

nation, there is growing recognition thatmoney bail unfairly penalizes indigentdefendants by incarcerating them formonths or even years to wait for their trial,while comparable wealthy defendants walkfree as they await trial. The way money bailis currently decided by North Carolina trialcourts violates both the United States andNorth Carolina Constitutions. With every-one from the right-leaning former NewJersey Governor Chris Christie46 to the left-leaning California Senator Kamala Harris47

recognizing the serious deficiencies in themoney bail system and advocating forreform, the time is right for North Carolinaofficials to act. n

David Clark has been a criminal defenseattorney for 32 years; first as a JAG with theUnited States Air Force, and for the past 27

10 FALL 2018

years with the Guilford County PublicDefender. During that time, he’s tried in excessof 150 jury trials. The vast majority of thesetrials involved clients who were held in jailduring critical pretrial preparation becausethey couldn’t afford to post the monetary bailset by the court.

The author would like to thank threeGuilford County Public Defender interns whohelped research and prepare this article: James“Miles” Duncan, a rising 3L at UNC Schoolof Law; Austin Foster, a rising 3L at ElonSchool of Law, who helped research and writethe article; and Sarah Price, a rising 3L atElon School of Law, who made certain thecitations were accurate and in proper form.

Endnotes1. Brutalism, Oxford Living Dictionaries, bit.ly/2uq1XMe

(last visited May 22, 2018) (“A stark style of function-alist architecture, especially of the 1950s and 1960s,characterized by the use of steel and concrete in massiveblocks.”).

2. Pretrial Release Policies in the Eighteenth Judicial District,bit.ly/2LaQt8R (last visited May 22, 2018).

3. N.C. Gen. Stat. §14-159.13 (2017) (second degreetrespass), N.C. Gen. Stat. §14-444 (2017) (intoxicatedand disruptive) and N.C. Gen. Stat. §14-160 (2017)(injury to personal property).

4. UNCG Police Help Nab 2 Men in Connection toShooting Incident at Convenience Store, News & Record,bit.ly/2NRngON (last visited May 22, 2018).

5. N.C. Gen. Stat. § 15A-534(b) (2017) (“The judicialofficial in granting pretrial release must impose [non-monetary bail conditions] unless he determines thatsuch release will not reasonably assure the appearanceof the defendant as required; will pose a danger ofinjury to any person; or is likely to result in destruc-tion of evidence, subornation of perjury, or intimida-tion of potential witnesses....and must record the rea-sons for so doing in writing to the extent provided inthe policies or requirements issued by the senior resi-dent superior court judge pursuant to G.S. 15A-535(a).”).

6. N.C. Gen. Stat. § 14-34.1 makes it a Class E felony todischarge a firearm into occupied property. The offenseis elevated to a Class D felony, requiring a mandatoryactive prison sentence, if the property is an occupiedstore such as is charged in this case.

7. Administrative Office of the Courts Form AOC-CR-226,bit.ly/2Lhi0Wj (last visited May 22, 2018).

8. Bail, Fines, and Punishments, NC Const. art. I, § 27(“Excessive bail shall not be required, nor excessive finesimposed, nor cruel or unusual punishments inflict-ed.”).

9. United States v. Salerno, 481 U.S. 739, 755 (1987).

10. Bearden v. Georgia, 461 U.S. 660, 665 (1983).

11. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir.1978) (en banc).

12. See, e.g., Rodriguez v. Providence Cmty. Corr., Inc., 155F. Supp. 3d 758, 768 (M.D. Tenn. 2015) (grantingclass-wide preliminary injunction based on “the equal

protection principles articulated by Pugh and its prog-eny”); Pierce v. City of Velda City, 2015 WL 10013006,at *1 (E.D. Mo. 2015) (“No person may, consistentwith the Equal Protection Clause of the FourteenthAmendment to the United States Constitution, be heldin custody after an arrest because the person is too poorto post a monetary bond.”); see also Williams v. Farrior,626 F. Supp. 983, 985 (S.D. Miss. 1986) (“For the pur-poses of the Fourteenth Amendment’s EqualProtection Clause, it is clear that a bail system whichallows only monetary bail and does not provide for anymeaningful consideration of other possible alternativesfor indigent pretrial detainees infringes on both equalprotection and due process requirements.”).

13. Jones v. City of Clanton, No. 215CV34-MHT, 2015WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015),bit.ly/2NRGEvj (last visited May 22, 2018).

14. 42 U.S.C. § 1983, Civil action for deprivation ofrights allows people to sue the government for allegedcivil rights violations. The statute applies when some-one acting “under color of” state-level or local law isalleged to have deprived a person of rights created bythe US Constitution or federal statutes.

15. Odonnell v. Harris Cty., 882 F.3d 528, 534-35 (5thCir. 2018).

16. Id at 536.

17. Id.

18. Id. at 537.

19. Id. at 540 (quoting Ky. Dep’t of Corr. v. Thompson, 490US 454, 460 (1989)).

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In an Alamance County courtroom,Jennifer Thompson, a young whitewoman, was 100% certain as sheidentified Ronald Cotton, anAfrican American man, as the per-

son who had raped her at knifepoint. Afterall, she was a straight “A” college student, andhad studied every feature of the stranger whohad broken into her home and attacked her,determined to make him pay if she survived.The jurors were swayed by this powerful tes-timony. Cotton was convicted and sentencedto life plus 54 years in prison. The problem:DNA would later prove that Ronald Cottonwas not the rapist. He served ten years inprison for a crime he did not commit, aginghim prematurely and depriving his family ofmuch-needed support. In the meantime,Bobby Poole, the actual perpetrator, was leftfree to wander the streets and violentlyassault other women.2

Eyewitness Identification is Prone toError

Thompson’s mistaken eyewitness identifi-cation is disturbing, but far from unique.Experts believe that “eyewitness error is theleading contributing factor in wrongful con-victions in the United States.”3 Hundreds ofconvictions have been overturned as a resultof DNA testing since 1989, and misidentifi-cation played a role in approximately three-quarters of these cases.4 In North Carolina,eyewitness misidentification has contributedto numerous wrongful convictions. In six of

these cases, DNA later proved the innocenceof the individuals who had been convicted:Joseph Abbitt, Knolly Brown Jr., DwayneAllen Dail, Lesly Jean, and Leo Waters, inaddition to Ronald Cotton.5 Eyewitnesserror was a factor in the wrongful convictionsof six additional North Carolina cases thatdid not involve DNA evidence: ErickDaniels, Terence Garner, Willie Grimes,Shawn Massey, Horace Shelton, and StevenSnipes.6 As with the Cotton case, these exon-erations represent irreparable damage to thelives of innocent people; perpetrators left atlarge to commit additional crimes; millionsof tax payer dollars wasted on court proceed-

ings, imprisonment, and compensation ofinnocent parties; and an erosion of faith inthe North Carolina criminal justice system.

Five decades ago, the United StatesSupreme Court observed, “the annals ofcriminal law are rife with instances of mistak-en identification.”7 In a groundbreaking2014 report, the National Academy ofSciences (NAS) described the fallibility ofmemory, which is at the heart of manywrongful convictions.8 Memories are notlike photographs stored in a safe, the reportcautions. Instead, “the fidelity of our memo-ries for real events may be compromised bymany factors at all stages of processing, from

12 FALL 2018

A New Approach: JuryInstruction on the DecreasedReliability of Cross-RacialIdentifications1

B Y A L Y S O N A . G R I N E

©iStockphoto.com

/RichLegg

encoding through storage, to the final stagesof retrieval. Without awareness, we regularlyencode events in a biased manner and subse-quently forget, reconstruct, update, and dis-tort the things we believe to be true.”9

In the Cotton case, Jennifer Thompson’smemory was altered to the point that, whenshe was confronted with the actual perpetra-tor in one court hearing, she felt not even aspark of recognition. “From description, tocreating an Identikit, to reviewing a photoarray, to identifying the wrong man in a line-up and in court—each step unconsciouslybecame a process of picking the individualmost resembling the prior step, not mostresembling the perpetrator.”10 To this day,she sees Ronald Cotton’s face in her night-mares about the attack.11

Cross-Racial Identification is LessReliable than Same-RaceIdentification

Adding yet another layer to the hazardsof misidentification, studies have shown thatpeople have greater difficulty in accuratelyidentifying members of a different race thanin identifying members of their own race.12

According to the NAS Report, “[r]ecentanalyses revealed that cross-racial (mis)iden-tification was present in 42% of the cases inwhich an erroneous eyewitness identifica-tion was made.”13 A meta-analysis of cross-racial identifications concluded that peopleare 1.56 times more likely to falsely identifythe face of a person of another race than theyare to falsely identify a member of their ownrace.14 This phenomenon has figured inNorth Carolina cases. For example, DwayneDail, Willie Grimes, Lesly Jean, and HoraceShelton were exonerated after having beenmisidentified by witnesses of a different race.The majority of these cases involved Whiteeyewitness mistakenly identifying blackindividuals.15

Jurors Overestimate the Reliability ofEyewitness Identifications Generallyand of Cross-Racial Identifications inParticular16

Scholars have found that jurors tend tooverestimate the reliability of eyewitness tes-timony.17 As one court observed, “while sci-ence has firmly established the inherentunreliability of human perception and mem-ory, this reality is outside the jury’s commonknowledge, and often contradicts jurors’commonsense understandings. To a jury,

there is almost nothing more convincingthan a live human being who takes thestand, points a finger at the defendant, andsays, ‘That's the one!’”18 In 2004,researchers surveyed nearly 1,000 potentialjurors in the District of Columbia about eye-witness identification. They concluded thatsurvey members often underestimated thedifficulties eyewitnesses experience in mak-ing cross-racial identifications, the impact ofstress on memory, and the ways in whichpolice procedures may undermine eyewit-ness accuracy.19 According to JusticeSotomayor, “jurors routinely overestimatethe accuracy of eyewitness identifications;[they] place the greatest weight on eyewit-ness confidence in assessing identificationseven though confidence is a poor gauge ofaccuracy.”20 In particular, scholars havefound that many jurors lack knowledge ofthe unreliability of cross-race identifica-tion.21 According to one survey:

[N]early two-thirds of jurors demonstrat-ed significant misunderstanding aboutthe risk of error in cross-racial identifica-tion when asked to compare the reliabilityof a same-race identification with that ofa cross-race identification. Nearly half therespondents believed cross-race and same-race identifications are equally reliable,while many others either did not knowthe answer or believed cross-racial identi-fications were more reliable.22

Other Jurisdictions Have AdoptedJury Instructions to Protect AgainstConvictions Based on MistakenIdentifications

In 2012, jurors in New York convictedOtis Boone of two counts of robbery in thefirst degree for taking cell phones from twoindividuals.23 The first robbery lasted aboutone minute; the second robbery even less.No physical evidence tied Boone to thecrimes. For each count of robbery, the onlyevidence against Boone, a black man, was thetestimony of one white man identifying himas the robber. At trial, Mr. Boone’s attorneyargued that the victims had mistakenly iden-tified him. The attorney asked that the trialjudge instruct the jurors about the inaccura-cy of cross-racial identification, but the judgedenied his request. On December 14, 2017,the highest court in New York found that thetrial judge erred, and stated that “the risk ofwrongful convictions involving cross-racialidentifications demands a new approach.”24

The court held that “when identification isan issue in a criminal case and the identifyingwitness and defendant appear to be of differ-ent races, upon request, a party is entitled toa charge on cross-racial identification.”25

In a few other states—New Jersey andMassachusetts—the highest courts have heldthat jurors must be instructed on the topic ofcross-racial identification.26 Appellate courtshave authorized such an instruction in addi-tional states, including California, Hawaii,and Utah.27 Most state appellate courts haveyet to address this issue. In North Carolina,the court of appeals recently upheld the trialjudge’s refusal to give such an instruction inState v. Watlington on the basis that counselhad not introduced any evidentiary supportto warrant such an instruction.28 This opin-ion leaves open the possibility of such aninstruction where counsel presents evidenceon the decreased reliability of cross-racialidentifications at trial.

Potential Benefits of a JuryInstruction on Cross-RacialIdentification in North Carolina

While a jury instruction on cross-racialidentification is not a magic bullet that willeliminate errors,29 it is one practical reformthat North Carolina can accomplish, and, asother jurisdictions have recognized, one thatcarries a number of benefits. For example,jury instructions do not cost a dime. Theyare concise statements that are simple to readto jurors. An instruction might read:“Research has shown that people may havegreater difficulty in accurately identifyingmembers of a different race or ethnicity. Youshould consider whether the race or ethnicityof the witness and the defendant may haveinfluenced the accuracy of the witness’s iden-tification.” Jury instructions carry weightwith jurors since they come from the judge.Having received the instruction, jurors mayfeel they have been granted “permission” todiscuss whether race played a role in theidentification, whereas, without the instruc-tion, they might fear that they would be per-ceived as racist if they broached the topic.“[A]s a society, we do not discuss racial issueseasily. Some jurors may deny the existence ofthe cross-race effect in the misguided beliefthat it is merely a racist myth...while othersmay believe in the reality of this effect, but bereluctant to discuss it in deliberations for fearof being seen as bigots. That, however, makesan instruction all the more essential.”30


Notably, the American Bar Association hasrecommended that there should be a juryinstruction on cross-racial identification if itis an issue in the case.31

A jury instruction would be most effec-tive when paired with other trial tools, suchas an effective cross-examination of the eye-witness regarding his or her ability to per-ceive and remember the perpetrator, as wellas expert testimony regarding the nature ofmemory, and factors that affect memory,such as the presence of a weapon. Relying oncross-examination alone, however, wouldproduce uneven results depending on theskill of the trial attorney. Cross-examining awitness, who may be traumatized, about thesensitive topic of race and whether it playeda role in the identification, without alienat-ing the jurors, requires skills that even expe-rienced trial attorneys may lack. In anyevent, eyewitnesses are often so convincedabout the accuracy of their identification,they remain unflappable even in the face ofthe most effective cross-examination.32

Unfortunately, studies have shown that suchconfidence does not correlate with higherlevels of accuracy.33 With regard to experttestimony, while it would certainly benefitjurors in every case in which identification isat issue, the reality is that experts on memory,and on cross-racial identification in particu-lar, are not readily available. Also, they costmoney. Judges may be reluctant to grant arequest for funds to obtain an expert, or mayrule such testimony inadmissible. For exam-ple, Ronald Cotton, and at least one otherwrongfully convicted North Carolina man,Terence Garner, were both denied the oppor-tunity to introduce expert testimony in theirtrials on the unreliability of cross-racial eye-witness identification, and in both cases therejection of such testimony was upheld onappeal.34 When an expert is unattainable,jury instructions can serve at least to bringthe issue to jurors’ awareness without anyassociated costs.35

ConclusionFollowing Ronald Cotton’s exoneration,

he and Jennifer Thompson have partnered toadvocate for reforms to prevent wrongfulconvictions on the basis of unreliable eyewit-ness identifications, protect the innocent,and convict the guilty. Together, they haveplayed a powerful role in achieving reformsincluding the passage of the EyewitnessIdentification Reform Act and the creation of

the North Carolina Innocence InquiryCommission. These reforms have beenimportant, but North Carolina can do moreto prevent wrongful convictions on the basisof cross-racial identifications. A jury instruc-tion on cross-racial identification would costNorth Carolina nothing, and would furtherthe aim of making our criminal system amore equitable one. A new or revised patternjury instruction would be an effective way ofensuring that these concepts are conveyed tojurors. Absent a pattern instruction, attorneysshould seek a cross-racial eyewitness identifi-cation instruction on the basis of competentevidence in cases involving cross-racial eye-witness identifications, and North Carolinatrial judges are empowered to give suchinstructions. North Carolina should join theranks of other states, such as New York, thathave concluded that “the risk of wrongfulconvictions involving cross-racial identifica-tions demands a new approach.”36 n

Alyson A. Grine is an assistant professor atNorth Carolina Central University School ofLaw. Previously, Grine served as the defendereducator at the UNC School of Governmentfrom 2006 until August 2016 focusing oncriminal law and procedure and indigentdefense education. She continues to work for theSchool of Government on the Racial EquityNetwork, a training program for indigentdefense lawyers on issues of race and criminaljustice.

Endnotes1. A. Grine & E. Coward, Raising Issues of Race in North

Carolina Criminal Cases (2014) (Chapter 3 of this man-ual deals generally with eyewitness identifications andsection 3.6E of the chapter deals specifically with juryinstructions), unc.live/2N7mcWC.

2. Jennifer Thompson, Miscarriages of Justice Caused byMistaken Identification: The Case of Ronald Cotton(March 2, 2018) (lecture at the UNC School ofGovernment for the North Carolina Racial EquityNetwork; conference title: Cross-Racial EyewitnessIdentification).

3. See Elizabeth F. Loftus et al., Eyewitness Testimony: Civiland Criminal § 1-2 (5th ed. 2013); see also EdwardConnors et al., National Institute of Justice, Convicted byJuries, Exonerated by Science: Case Studies in the Use ofDNA Evidence to Establish Innocence After Trial (1996);C. Ronald Huff et al., Guilty Until Proved Innocent:Wrongful Conviction and Public Policy, 32 Crime &Delinquency 518 (1986); Innocence Project, DNAExonerations in the United States, bit.ly/2yJC1w7 (last vis-ited June 12, 2018).

4. Perry v. New Hampshire, 565 U.S. 228, 263 (2012)(Sotomayor, J., dissenting) (“[A] staggering 76% of thefirst 250 convictions overturned due to DNA evidencesince 1989 involved eyewitness misidentification.”).

5. The National Registry of Exonerations, Browse Cases,bit.ly/1JVXTF3 (last visited June 12, 2018).

6. Id.

7. United States v. Wade, 388 U.S. 218, 228 (1967).

8. National Academy of Sciences, Identifying the Culprit:Assessing Eyewitness Identification (2014),bit.ly/2zQR6A7.

9. Id. at 60.

10. Joseph F. Savage Jr. & James P. Devendorf, ConvictionAfter Misidentification: Are Jury Instructions a Solution?,The Champion, June 2011, at 30, n.7 (discussing factorscontributing to Jennifer Thompson’s misidentification ofRonald Cotton).

11. Thompson, supra note 2.

12. See, e.g., Radha Natarajan, Racialized Memory andReliability: Due Process Applied to Cross-Racial EyewitnessIdentifications, 78 N.Y.U. L. REV. 1821, 1822–23(2003) (concluding that “[w]hile all eyewitness identifi-cations are prone to error, cross-racial eyewitness identi-fications are more often wrong than same-race identifi-cations”); see also Gary L. Wells & Elizabeth A. Olson,The Other-Race Effect in Eyewitness Identification: WhatDo We Do About It?, 7 Psychol. Pub. Pol’y & L. 230, 230(2001); American Bar Association, American BarAssociation Policy 104D: Cross-Racial Identification, 37SW. U. L. REV. 917, 924 (2008) (“The purpose of aspecific jury instruction on cross-racial identification is topermit juries to consider the increased possibility ofmisidentification in determining whether or not there issufficient evidence of guilt.”).

13. National Academy of Sciences, supra note 8, at 96.

14. Christian A. Meissner & John C. Brigham, Thirty Yearsof Investigating the Own-Race Bias in Memory for Faces: AMeta-Analytic Review, 7 Psychol. Pub. Pol’y & L. 3, 15(2001).

15. The exonerees named who were the subjects of mistak-en cross-racial identifications are black, with the excep-tion of Dwayne Dail who is white.

16. For a more detailed discussion of this issue, see A. Grine& E. Coward, supra note 1, at sections 3.2 and 3.3.

17. See, e.g., Tanja Rapus Benton et al., Eyewitness Memoryis Still Not Common Sense: Comparing Jurors, Judges andLaw Enforcement to Eyewitness Experts, 20 AppliedCognitive Psychol. 115 (2006); Richard S. Schmechel etal., Beyond the Ken? Testing Jurors’ Understanding ofEyewitness Reliability Evidence, 46 Jurimetrics J. 177(2006).

18. United States v. Brownlee, 454 F.3d 131, 142 (3d Cir.2006) (quotations and citations omitted). See also Phillipsv. Allen, 668 F.3d 912, 916 (7th Cir. 2012) (stating that“nothing is obvious about the psychology of eyewitnessidentification” and “most people’s intuitions on the sub-ject of identification are wrong”).

19. Timothy P. O’Toole et al., District of Columbia PublicDefender Survey, The Campion, Apr. 2005, at 28; see alsoSchmechel et al., supra note 17.

20. Perry v. New Hampshire, 565 U.S. 228, 264 (2012)(Sotomayor, J., dissenting) (internal citations omitted).

21. Brief of Amicus Curiae NAACP Legal Defense &Educational Fund, Inc. at 14, People v. Boone, 91 N.E.3d1194 (N.Y. 2017) (No. 2012-07711) (citing Richard S.Schmechel et al., Beyond the Ken? Testing Jurors’Understanding of Eyewitness Reliability Evidence, 46Jurimetrics J. 177, 200 (2006), and Roger B. Handberg,Expert Testimony on Eyewitness Identification: A New Fairof Glasses for the Jury, 32 Am. Crim. L. Rev. 1013, 1035(1995)).

14 FALL 2018

22. Id. (citing Richard S. Schmechel et al., Beyond the Ken?Testing Jurors’ Understanding of Eyewitness ReliabilityEvidence, 46 Jurimetrics J. 177, 200 (2006)).

23. People v. Boone, 91 N.E.3d 1194 (N.Y. 2017).

24. Id. at 1196.

25. Id.

26. State v. Henderson, 27 A.3d 872, 299 (N.J. 2011); Com.v. Bastaldo, 32 N.E.3d 873, 883 (2015).

27. See People v. Palmer, 203 Cal. Rptr. 474, 475 n.2 (Cal.Ct. App. 1984) (reversible error to reject defendant’s pro-posed jury instruction that would have instructed jurorsto “consider whether or not the witness is the same raceas the individual he is attempting to identify. If they arenot, you should consider the effect this would have on anaccurate identification.”); State v Cabagbag, 277 P.3d1027 (Haw. 2012) (holding that trial courts “must givethe jury a specific eyewitness identification instructionwhenever identification evidence is a central issue in thecase, and it is requested by the defendant[,]” including aninstruction that one factor to be considered in evaluatingidentification testimony is the cross-racial nature of anidentification); State v. Long, 721 P.2d 483, 494 n.8(Utah 1986) (instruction that would satisfy the court’sconcerns instructs jurors to “consider whether the wit-ness is of a different race than the criminal actor.Identification by a person of a different race may be lessreliable than identification by a person of the samerace.”); State v. Brink, 173 P.3d 183, 185 n.1 (Utah Ct.App. 2007) (discussing with approval an instruction pro-viding in part that “a witness identification of a person ofa different race may be less reliable”).

28. State v. Watlington, 234 N.C. App. 580 (2014). NorthCarolina courts also rejected proposed jury instructionson cross-racial impairment in several cases in the early80s. See State v. Allen, 301 N.C. 489 (1980); State v.Miller, 69 N.C. App. 392 (1984). Less scientific evi-dence of cross-racial impairment was available at thattime. See A. Grine & E. Coward, supra note 1, at 3-33 to3-34 (discussing cross-racial jury instructions in NorthCarolina).

29. In fact, in the second trial of Ronald Cotton, the trialjudge briefly instructed jurors “to consider whether it ismore difficult to identify one who is a member of anoth-er race,” but the jurors were persuaded to convict by the“certain and largely unimpeached” identification byThompson. State v. Cotton, 99 N.C. App. 615, 620–22(1990), aff’d on other grounds, 329 N.C. 764 (1991).

30. Boone, 30 N.Y.3d 521, 532 (quoting brief of formerjudges and prosecutors as amici curiae at 8).

31. American Bar Association, supra note 12 (“The purposeof a specific jury instruction on cross-racial identificationis to permit juries to consider the increased possibility ofmisidentification in determining whether or not there issufficient evidence of guilt.”).

32. Boone, 30 N.Y.3d 521, 531 (“[A]s scholars have cau-tioned, most eyewitnesses think they are telling the trutheven when their testimony is inaccurate, and because theeyewitness is testifying honestly (i.e., sincerely), he or shewill not display the demeanor of the dishonest or biasedwitness. Instead, some mistaken eyewitnesses, at least bythe time they testify at trial, exude supreme confidence intheir identifications” (quoting State v Henderson, 27 A.3d

872, 889 (N.J. 2011)) (internal quotation marks, brack-ets and citation omitted)).

33. Loftus et al., supra note 3, at § 3-12; Brian L. Cutler &Steven D. Penrod, Mistaken Identification, 218, 95(1995).

34. Cotton, 99 N.C. App. at 621–22 (affirming exclusionof expert witness on ground that the effects of stress,cross-racial factors, priming of memory, and confidencemalleability were commonly known to jurors, amongother factors; State v. Garner, 136 N.C. App. 1, 7–10(1999).

35. See Derek Simmonsen, Teach Your Jurors Well: UsingJury Instructions to Educate Jurors About Factors Affectingthe Accuracy of Eyewitness Testimony, 70 MD. L. Rev.1044, 1079-80 (2011) (“Jury instructions are the bestmethod for educating jurors about eyewitness identifica-tion issues for a variety of reasons. Judges are alreadyfamiliar with instructions and comfortable using them.Instructions can easily be incorporated into a trial and arecompatible with already existing instructions. They costlittle to implement and are efficient. Instructions alsoavoid the adversarial nature of dueling experts and allowfor a continuing debate within the legal community.Trial judges retain discretion to modify them as neededfor the facts of any particular case. Finally, they offer auniform and neutral means of educating jurors.”); Briefof Amicus Curiae NAACP Legal Defense & EducationalFund, Inc. at 22 n.89, People v. Boone, 91 N.E.3d 1194(N.Y. 2017) (No. 2012-07711) (citing Simmonsen).

36. Boone, 30 N.Y.3d 521, 526.


This article provides a brief history ofNorth Carolina’s judicial selection and elec-tions, recurring issues, and recent develop-ments in judicial elections laws. It will alsoexplore the judicial selection processes in thesister states of Virginia and South Carolina,the federal courts, and identify relevant issuesand opportunities.

I. North Carolina Judicial SelectionIn North Carolina after independence,

judicial selection originated and rested withthe General Assembly’s appointing of judgesand justices to office, as mandated by theNorth Carolina Constitution of 1776. Theseappointments were not subject to term limi-tations or mandatory retirement in theConstitution. This practice remained in placefor over 90 years, until the enactment of the1868 post-Civil War Constitution.

For the past 150 years, North Carolina hasrequired all judicial appointees and candi-dates to stand for popular election. Article IV,Sections 26 and 27 of the 1868 NorthCarolina Constitution abolished judicialselection by legislative appointment andrequired popular elections to be held for allNorth Carolina judicial offices.1 Appellatejustices and judges and superior court judgesrun for office, serve eight-year terms, and arerequired to “be elected by qualified voters ofthe State, as is provided for the election ofmembers of the General Assembly.”2 Thisnew constitutional provision shifted judicialselection from General Assembly appoint-ments to partisan elections.3

Gubernatorial appointment to vacanciesoccasioned from newly created judgeships,resignations, retirements, and deaths, withoutformal legislative input or confirmation, led

to one-party dominance of the judiciary.Vacancies would be filled by creating anothervacancy in a lower court judgeship. Beingappointed to office allowed the appointedjudge to run for election as the “incumbent”in the following general election.

Partisan judicial selections and electionsremained the exclusive process of maintain-ing the bench for well over a century, despitemultiple attempts to amend.4 In 1974 and1977, members of the General Assemblyintroduced bills to establish a “merit selec-tion” process.5 Despite support from the judi-ciary and Bar, both bills failed.6

Notwithstanding the failure of both bills,then-Governor James Hunt created a “meritselection” panel through an executive order;he filled vacancies through panel “recommen-dations” until he left office in 1985.7 Thispanel was criticized as requiring the candidateto belong to the same political party as thegovernor as the threshold “merit.” This “meritselection” panel ended with the expiration ofhis second term.8

Despite apparent support for changingthe judicial selection process, most amend-ment efforts in the 1990s failed.9 In 1991, abill establishing a merit selection process withconfirmation by the General Assembly passedin the Senate, but failed in a House commit-tee.10 Likewise, a 1995 bill proposedappointment by the governor, legislative con-firmation, and retention elections for appel-late judges. This proposal passed the Senate,but failed in the House of Representatives.11

Another major attempt at changes failedin 1999. The 1999 bill would have estab-lished merit selection and retention electionsfor appellate judges. Once again, the Senateapproved the measure, but the House of

Representatives did not concur.12

However, a major breakthrough occurredin 1996. The North Carolina RepublicanParty (“Republican Party”), hobbled by alarge disadvantage in the partisan, statewidesuperior court elections, sued the State Boardof Elections in Republican Party of NorthCarolina v. Martin.13

The Republican Party alleged voters’rights under the First and FourteenthAmendments were violated by the then-cur-rent statewide judicial election process forsuperior court judges.14 The suit was initiallydismissed by the United States DistrictCourt, which ruled the suit failed for lack ofa justiciable question.15 The United StatesCourt of Appeals for the Fourth Circuit over-turned, holding the Republican Party had

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History and Comparison ofJudicial Selection Processes

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/YinYang

asserted a justiciable claim and cited Davis v.Bandemer.16 In Davis, the Supreme Court ofthe United States held vote dilution claimsfiled by political parties were justiciable.17

After remand, in which the district courtordered a preliminary injunction before the1994 superior court elections, the suit settled,with three republican superior court judgesbeing appointed.18

In reaction to this lawsuit, the legislatureamended the statute for partisan judicial elec-tions for superior court judges, and estab-lished a non-partisan primary and generalelections for these judges.19 Further, superiorcourt judges were no longer elected by votersstatewide, but by voters within the judges’individual geographical districts.20 Thesechanges took effect in 1998.21

Republican appellate judicial candidatesdominated the statewide elections in 1998,2000, and 2002. The democratic majority inthe General Assembly responded with similarlegislation in the early-to-mid-2000s toimplement non-partisan elections for districtcourt judges, court of appeals judges, and jus-tices of the Supreme Court. In 2002 the leg-islature amended the law governing the elec-tions of all appellate court judges to makethose elections non-partisan, beginning withthe 2004 elections.

Also beginning in 2004, appellate judicialcandidates could opt to receive public financefunding, after raising sufficient “qualifyingprivate contributions.” Candidates were fur-ther limited on the amount and number ofprivate contributions they were allowed tosolicit or retain.22 However, public financingwas repealed by N.C. Session Law 2013-360after the Supreme Court of the United Statesdeclared similar public financing plans inArizona as unconstitutional.23

In 2011, then-Governor Beverly Perdueestablished a “merit selection panel” throughexecutive order.24 She garnered criticismwhen, at the very end of her term, shebypassed this panel to appoint appellatejudges into office to prevent her successor, PatMcCrory, from filling those vacancies withhis own appointments.25 Moreover, in 2011the legislature attempted to amend theConstitution by passing Senate Bill 458,which would have established judicial meritselection.26 The proposed amendment read:

An act to amend the North CarolinaConstitution to replace the present prac-tice of selecting justices and judges of theappellate division and judges of the supe-

rior court generally by gubernatorialappointment, followed by elections, witha method by which (1) two candidates forjustice and judge will be nominated by ajudicial nominating commission, the gov-ernor will appoint one of them, and at thenext election the voters will choose in anonpartisan election between the two per-sons, (2) at the end of the term of a justiceor judge who has successfully won an elec-tion, the question of the justice’s or judge’sretention in office is submitted forapproval or disapproval by nonpartisanvote of the people, (3) provision is madefor the case of withdrawal of a candidatebefore the election, and (4) provision ismade for appointment of the chief justicefrom among the associate justices.27

This proposed amendment never made itonto a state-wide ballot for a vote.

II. Recent ChangesIn 2015 the North Carolina General

Assembly enacted legislation for incumbentSupreme Court justices to retain or vacatetheir seat through retention elections. N.C.Gen. Stat. § 7A-4.1 provided, “[a] justice ofthe Supreme Court who was elected to thatoffice by vote of the voters who desires tocontinue in office shall be subject to approvalby the qualified voters of the whole state in aretention election at the general electionimmediately preceding the expiration of theelected term.”28

A retention election occurs “where a justiceruns against his own record. Similar to consti-tutional changes, voters have the ability tovote for or against a justice’s ability to stay onthe court.”29 In procedure, the name of a sit-ting justice is placed on a ballot, and voters areasked whether the judge should be retained onthe bench. 2016 was intended to featureNorth Carolina’s first retention election.30

A prospective Supreme Court candidatefiled a suit, alleging the retention law violat-ed the North Carolina Constitution,imposed an additional qualification for acandidate for office, and barred her fromrunning against an incumbent judge.31 Sheargued the North Carolina Constitutionrequired contested elections.32 A three-judgelower court overturned the law; and theirdecision was appealed directly to theSupreme Court of North Carolina.33 TheCourt’s decision split 3-3 on the law’s consti-tutionality due to the affected justice’srecusal, rendering the lower court’s decision

undisturbed, but non-precedential.34

The 2016 Supreme Court judicial elec-tion returned to a traditional, unaffiliatedcontested primary, which narrowed the can-didates from three to two, and led the generalelection.35

In early 2017, the North Carolina GeneralAssembly returned all judicial elections, trialand appellate, to partisan races.36 Overridingthe governor’s veto, the legislature passed abill into law allowing judicial candidates topublicly affiliate with, and be certified by,political parties.37

Also in early 2017, the North Carolinalegislature introduced a bill reducing thecourt of appeals from 15 judges to 12.Governor Cooper also vetoed the bill as an


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unconstitutional attempt to “inject partisan-ship into our courts,” but his veto was alsooverridden by the General Assembly. The billbecame law and will effectively abolish thenext three seats that become vacant on thecourt of appeals, whether due to death,removal, resignation, or retirement prior tothe end of the judge’s current term.38 Thesame legislation provides an appeal of rightdirectly to the Supreme Court of NorthCarolina from the trial divisions in casesregarding orders terminating parental rightsas well as decisions concerning certification ofclass actions. The bill will become effective onor after January 1, 2019.39

In June 2017, Chief Justice Mark Martinproposed to change judicial selection to anon-election process. At the 2017 NorthCarolina Bar Association’s Convention, headvocated replacing the current partisan elec-tion process with a merit selection process.40

Chief Justice Martin recommended forthe General Assembly to establish a selectionprocess with three main components: (1) apanel, appointed by the governor andGeneral Assembly, tasked with evaluatingcandidates based upon objective and non-ide-ological criteria; (2) a governmental authorityaccountable to the people appoints judges;and, (3) retention elections held at regularintervals, ensuring North Carolina votersretain continual involvement in judicial selec-tion.41 This plan is most comparable to the“Missouri Plan” which is a:

method of selecting judges that originatedin the state of Missouri and subsequentlywas adopted by other US jurisdictions. Itinvolves the creation of a nominatingcommission that screens judicial candi-dates and submits to the appointingauthority (such as the governor) a limitednumber of names of individuals consid-ered to be qualified. The appointingauthority chooses from the list, and anyone so chosen assumes the judgeship for aprobationary period. After this period thejudge stands for popular election for amuch longer term, not competing againstother candidates, but basing his candidacyon previous judgments. Under theMissouri Plan, voters decide whether ornot to retain the judge in office.42

In June 2018 the General Assembly enact-ed Session Law 2018-118 to place on the bal-lot for the November 2018 general electionsa constitutional amendment to change theprocess for filling judicial vacancies.43 If vot-

ers approve the proposed amendment, itwould change the process for filling vacanciesof all North Carolina judicial seats.44

To replace the current process of the gov-ernor choosing and filling vacancies, the con-stitutional amendment establishes a nine-member Nonpartisan Judicial MeritCommission of members selected by thechief justice, the governor, and the GeneralAssembly to evaluate candidates nominatedby the “people of the state.”45 The commis-sion ranks candidates as qualified or not qual-ified for the judicial position and forwards itsevaluations to the General Assembly.46 TheGeneral Assembly then recommends at leasttwo nominees, deemed qualified by the com-mission, to the governor.47 The governorthen appoints the nominee the governordeems best qualified solely from the GeneralAssembly’s nominees.48

If the governor fails to appoint a nomineewithin ten days after the General Assemblypresents the nominees, the General Assemblyfills the vacancy.49 The bill also provides thatthe chief justice could fill the vacancy if thevacancy occurs during a period in which theGeneral Assembly is in adjournment, theGeneral Assembly adjourns without present-ing nominees to the governor or fails to electa nominee, or the governor fails to appoint anominee recommended by the GeneralAssembly.50

Local commissions appointed by the chiefjustice, governor, and General Assemblywould evaluate nominees for superior anddistrict court vacancies under the sameprocess described above.51

In light of the proposed constitutionalamendment to fill judicial vacancies, it is alsoforeseeable that another amendment may beproposed to implement a different process forselecting judges or holding an election forjudges.

III. Judicial Campaign FinanceA record level of in-state election spending

was set in 2016: $33.1 million compared tothe previous record of $14.5 million in2012.52 While most of this spendingoccurred in the governor’s race,53 a largeamount was also spent on the state-wide judi-cial races.54 A total of $5 million was spenton the 2016 North Carolina Supreme Courtrace, with $2.6 million for the incumbentand $2.4 million for the general election chal-lenger.55 Over $100,000 was also spent oneach of the two court of appeals races, an

amount that significantly exceeded recentexpenditures for court of appeals races.56 Thisincrease in spending has occurred in part dueto the growing involvement and outsideexpenditures of outside groups.57 The 2016judicial primary was similarly unusual. Anexcess of $500,000 was spent and most of thespending was by the incumbent.58

This expenditure record substantiallyincreased the amount over the 2014 electionspending, which at that time had establisheda new record.59 In 2014, North Carolinaranked second in the country in spending onstate judicial elections, behind Michigan.60

More than $6 million dollars was raised forthe four Supreme Court seats, of which $2.1million was spent by outside spendinggroups.61 The Supreme Court candidatesreceived an average of $436,030.62 Notably,this was the first judicial election after theGeneral Assembly had removed the publicfinancing system, which had been roundlycriticized by candidates and incumbents ofboth political parties for providing whollyinadequate funding levels for a statewidecampaign.63

IV. Judicial Election Outcomes

6 November 2018 ElectionFor the November 2018 general election,

one Supreme Court seat and three court ofappeals seats will be up for election.64 Thiswill be the first election since 1996 in whichall judicial races—trial and appellate—will belisted on the ballot as officially partisan.65

Session Law 2017-214, passed by the GeneralAssembly in 2017, eliminated all judicial pri-maries for the 2018 election.66 This law wasupheld over a challenge in federal court.67

The 2018 races for the Supreme Court seatand two of the court of appeals seats will be“winner-take-all” for the highest vote getterout of the three candidates, with no requiredminimum percentage of the vote and norunoff election required.

2016 Judicial ElectionIn 2016, of the 6,914,248 total eligible

voters in North Carolina, 4,769,640 voted.68

These were the first partisan court of appealsjudicial elections in 14 years for five seats, orone-third of the composition of the court. Inthe Supreme Court election, the candidatesstill ran unaffiliated, but the challenger, a sit-ting trial court judge who was listed first onthe ballot, won with 2,157,927 of the votes

18 FALL 2018

(54.47%), against the well-regarded andexperienced two-term incumbent, who gar-nered 1,803,425 votes (45.53%).69

All republican judicial candidates andincumbents for the five seats on the court ofappeals were successful. In those five races,three of the 2016 court of appeals winnerswere also incumbents, appointed by the gov-ernor, with the exception of one open seatvacated by an interim gubernatorialappointee, who did not seek election. Onepreviously elected incumbent was defeated.

The 2016 election—the first partisancourt of appeals judicial election in 14years—had by far the most voter participa-tion. This high turnout was due to the elec-tion being a presidential year and a hotly con-tested US senatorial election, as well as thereturn to partisan elections for the court ofappeals, which reduced the voter “drop off”in past non-partisan elections. The uniquenature of the 2016 presidential and nationalelection cycle was also a factor in the greatlyincreased voter turnout from all sides.70

4 November 2014 ElectionIn the 2014 general election, four

Supreme Court seats were up for election.There were 2,939,767 out of 6,627,862(44.35%) eligible North Carolina voters whoparticipated.71 All of these races were official-ly non-partisan. Two appointees and oneincumbent won, one appointee lost, and oneSupreme Court incumbent, who had beengubernatorially appointed as chief justice, waselected. A highly contested statewide UnitedStates Senate election, in which the incum-bent was defeated, was also on the statewide2014 ballot, which increased voter turnout.

Four court of appeals seats were also onthe statewide ballot in 2014. One incum-bent judge was uncontested, one gubernato-rial appointee was elected, one election wasfor an open seat due to the retirement of theincumbent at the end of his term, and thelast vacancy occurred after the primarydeadline, which attracted 19 candidates in awinner-take-all election that included twoformer court of appeals judges and threetrial judges. Two of these successful candi-dates in the head-to-head elections raisedand spent over $400,000, outspending theiropponents, who were both sitting trialjudges, by nearly 10 to 1.

6 November 2012 ElectionIn the 2012 general election, one Supreme

Court seat and three court of appeals seatswere up for election. The races were all non-partisan. All of the winners, except one, wereincumbents. A former court of appeals judgewon with 1,821,562 votes (51.9%), defeatingthe re-appointed court of appeals judge, whoreceived 1,688,463 votes (48.1%) and whohad also been defeated in the 2010 generalelection in a bizarre, and since repealed,“instant runoff” election where voters had tolist their first and second choices of candi-dates for the seat.

Presidential elections were held in 2012and 2016. The number of raw votes in bothof these election years dwarfed the voterturnout in 2014, a mid-term election year,with four North Carolina Supreme CourtJustices and four court of appeals seats, allbeing non-partisan, but with a hotly contest-ed statewide United States Senate seat on theballot.

V. Virginia Judicial ElectionsIn reviewing the various methods of judi-

cial nomination, selection, election, andretention, the prevailing practices in NorthCarolina’s bordering sister states are alsoinstructive.

The Commonwealth of Virginia uses alegislative appointment system for selectingits judges. The Virginia Constitution states:

The justices of the Supreme Court shallbe chosen by the vote of a majority of themembers elected to each house of theGeneral Assembly for terms of 12 years.The judges of all other courts of recordshall be chosen by the vote of a majorityof the members elected to each house ofthe General Assembly for terms of eightyears.72

The Code of Virginia provides, “[t]heSupreme Court, by rule, shall establish andmaintain a judicial performance evaluationprogram that will provide a self-improvementmechanism for judges and a source of infor-mation for the reelection process.”73

Virginia uses the Judicial PerformanceEvaluation Program to determine if sittingjudges should be re-elected to the bench. Thisevaluation program consists of numerous fac-tors, which include a scaled performance,anonymous writing evaluations from attor-neys who have come before a judge, and anobservation from a retired judge in the court-room. These evaluations are then sent toVirginia Commonwealth University’s Surveyand Evaluation Research Laboratory (VCU-

SERL), which is an independent contractorthat prepares the evaluation reports. Uponcompletion, the reports are presented to theVirginia General Assembly for their vote.

Currently, judicial selection in Virginia isfacing some backlash to the election process.As one report notes, “many judges are gettingnegative remarks and not getting reelected.Performance reviews can make people nerv-ous, and judges are no exception. They won-der just who is weighing in on their abilitiesand what weight their bosses give thosereviews.”74

However, Chief Justice Lemons of theVirginia Supreme Court stated the currentselection process is here to stay.75 The stateacknowledges the evaluations are stressful,pointing out, “judges in their first term areevaluated three times: after the first year onthe bench, mid-term, and during the yearbefore re-election. During successive terms, ajudge is evaluated mid-term and in the yearbefore re-election.”76

VI. Judicial Selection and Retention inSouth Carolina

South Carolina’s judicial election andretention process is also fairly unique amongthe states, due to its usage of a merit selectionprocess wholly controlled by the legislature.The legislature elects the state’s judges, asmandated by the South CarolinaConstitution.77 Before the General Assemblyvotes upon a candidate, the candidate is vet-ted and approved by a merit selection panelcalled the Judicial Merit SelectionCommission (JMSC).

The executive branch asserts no formalcontrol in judicial selection, with the excep-tions of magistrates, administrative lawjudges, and masters-in-equity. These judgesare appointed by the governor.78

Because three legislators appoint theapproving panel, and the candidates are votedon by the General Assembly, the legislatureessentially retains “absolute control” over whoenters into judicial office.79 Under this sys-tem, candidates must seek out legislators to gar-ner support. Some fear this practice renderslegislatively-elected judges being beholden topoliticians.80 Despite criticism and accusa-tions of corruption, no official changes haveoccurred.81

The JMSC’s ten members are all selectedby members of the legislature. Five areselected by the Speaker of the House; theSpeaker must appoint three appointees from


the General Assembly and two from thegeneral public.82 The chair of the SenateJudiciary Committee selects three members,while the president pro tempore selects theremaining two.83 Likewise, three commis-sion members must come from the GeneralAssembly, and two members are appointedfrom the general public.84

The panel reviews the candidate’s legalqualifications and overall fitness for publicoffice; “[n]o candidate determined to beunqualified for judicial office may be elect-ed.”85 South Carolina law requires theJMSC to consider at least nine differentareas: the candidate’s constitutional qualifica-tions, ethical fitness, professional and aca-demic ability, character, reputation, physicalhealth, mental stability, experience, and judi-cial temperament.86

After reviewing the candidate’s qualifica-tions and conducting an interview, theJMSC prepares a report, which is voted uponby the JMSC’s members. The report indi-cates whether the candidate is qualified orunqualified.87

The JMSC nominates no more than threequalified candidates per position from thepool of candidates.88 South Carolina’sSupreme Court justices, court of appealsjudges, and circuit trial judges are all selectedby this process.89

Of South Carolina’s current judges, onejustice, four court of appeals judges, and ninecircuit court judges are former legislators orlegislative staff; which equals to 14 out of 61judges, as identified on the SC judicialdepartment website.90 Critics of this processnote that relatives of sitting legislators havecommonly been elected as judges, in additionto former legislators with little or no experi-ence on a bench.91

The chair of the JMSC also appoints citi-zens to committees with the duty of screeningcandidates for local judgeships in five differ-ent geographical regions of South Carolina.92

Each regional committee conducts back-ground investigations and interviews candi-dates for regional judgeships, as well as thecandidates’ friends and acquaintances.93

VII. Federal Judicial Appointmentsand Confirmation

Federal government judicial selection dif-fers from most states, in that judges are notvoted into judicial office. Nominees areappointed by the president and confirmed bythe Senate.94 Article III federal judges are

appointed for life, endure no initial or reten-tion elections, and can only be removed byimpeachment.95 However, this process is notimmune from partisanship.

The first step in the federal trial and appel-late selection process requires the president tonominate a candidate. Before a person isnominated, the Justice Department and thepresident’s political staff must “vet” the per-son. This process seeks to determine whetherthe nominee is competent, experienced, pos-sesses judicial temperament, and shares simi-lar philosophical beliefs with the president.96

The president’s nomination is then sub-mitted to the United States Senate andreferred to the Senate Judiciary Committee,which also reviews the nominee’s qualifica-tions and votes on whether to send the candi-date’s nomination to the full Senate for a floorvote.97 At this juncture, the senators from thenominee’s home state may formally weigh inon the nominee.98

The Senate retains a long-standing tradi-tion called “blue slipping,” by which thenominee’s home state senators may expresstheir displeasure with a nominee by notreturning a “blue slip” mailed to them by thecommittee. The purpose of the slip is for sen-ators to mark their support or opposition tothe nominee, and then return the slip.99

When a home state senator simply does notreturn the slip,100 the chair of the JudiciaryCommittee extends that senator a courtesyand indefinitely refuses to hold hearings onthe nominee’s merits.101

This failure by the home state senator toreturn the blue slip essentially kills the districtcourt nomination, regardless of the candi-date’s qualifications.102 This “courtesy” is reg-ularly extended to all senators, regardless ofthe party affiliation of the home senators, thechair, the nominee, or the president.103 Thisprocess has routinely been used by both polit-ical parties to delay nominations, in order togive an incoming president more judicialvacancies to fill.104

Once a nomination is approved by theSenate Judiciary Committee, a nominationmay still experience partisanship difficultiesbefore the “advise and consent” vote by thefull Senate.105 The Senate confirmationprocess regularly experiences strong partisan-ship, which has intensified over time.106

There has been a sizable increase in thenumber of days a United States DistrictCourt nominee waits for confirmation.Under President Reagan, the average wait was

60 days.107 This wait rose to 135 forPresident Clinton, 178 days for PresidentBush-43, and 223 days for President Obamain 2013.108 Further, the average number ofdays a United States District Court vacancyexisted under George W. Bush was 285.109 In2013 the average wait had risen over a year to408 days.110 By June 2018 there were 61 fed-eral judicial positions that had been vacant formore than 250 days, and 20 federal judicialpositions that had been vacant for more than1,000 days.111

President Obama also experienced delaysin confirming appellate judges. In PresidentObama’s fifth year of his presidency, 2013,his rate of appellate confirmations tookmuch longer and were less successful thanPresident Bush-43’s confirmation rates in hisfifth year.112

Increasing partisanship, uncertainty, anddifficulty in timely confirmation has caused adeclining number of private practice attor-neys to seek federal judgeships, and kept anincreasing number of state judges, term-lim-ited federal judges, and magistrates fromseeking federal judgeships. These trends havegrown steadily since the Eisenhower adminis-tration.113

When Donald J. Trump took office aspresident in January 2017, 88 district and 17court of appeals vacancies existed.114 As ofJune 2018, President Trump had obtainedSenate confirmation for 15 appeals courtnominees.115 However, increasing partisan-ship has resulted in President Trump’s nomi-nees “fac[ing] a record amount of opposi-tion,” according to the Pew ResearchCenter.115 In spite of the opposition, theaverage number of days from nomination toconfirmation under President Trump is 115,approximately 20 days shorter than inPresident Obama’s first year.117

VIII. ConclusionNorth Carolina has experienced designat-

ed-party affiliation in its judicial electionsdating back 150 years to 1868. The back-and-forth struggles between the political par-ties led to calls for non-partisan elections.Although North Carolina experienced a briefperiod of non-partisan elections at all judiciallevels between 2004 and 2014, partisan elec-tions have returned in full force. In response,Chief Justice Martin advocated a system ofjudicial selection similar to that in Missouriin June 2017.

Virginia elects and re-elects judges

20 FALL 2018

through its legislature. It also maintains ananonymous evaluation program in whichjudges are reviewed based upon their court-room performance. A judge’s re-electionprospects are directly derived from thereviews. This process has been contentiousand criticized by many frustrated judges.They argue the reviewers and weight of thereview criteria are unknowable, amount tocharacter assumptions/assignations, and thusare unfair and are unreliable indicators ofjudicial experience, temperament, and per-formance.

South Carolina’s judges, like Virginia’s,are also elected by the legislature, based uponformal recommendations prepared by theJMSC. The JMSC members are hand-picked by three specific members of the leg-islature. This ensures the judiciary is answer-able to the people through the elected mem-bers of the legislature, at least in theory.Many critics note the process gives the legis-lature complete control over the judicialselection process, forcing judicial candidatesto curry favor with legislators. SouthCarolina’s history of former legislators withlimited prior judicial experience and legisla-tor-relatives being appointed to the bench,evidences the possibility of strong partisan-ship and possible corruption occurring in theprocess.

On the surface, the federal nominationand selection process avoids politicization ofthe judiciary by eliminating elections andretention elections. However, the selection,nomination, and confirmation process itself,and the political entities partaking in it, ren-der the federal judicial selection increasinglypartisan, ideological, and fraught with enor-mous delays to give the most qualified candi-dates pause. Moreover, the presidentialappointment process has also becomeincreasingly partisan over time. Most federaljudicial nominees are marched through anintensely partisan process to be vetted, nom-inated, recommended out of the SenateJudiciary Committee, and ultimately to begranted a Senate floor “advise and consent”vote.

In summary, North Carolina’s history ofjudicial selection, along with an examinationof Virginia’s and South Carolina’s judicialselection process, demonstrates the difficultyin establishing a process that identifies andselects potential judges, based upon judicialtemperament, objective and proven experi-ence, and merit, while retaining direct

accountability to the people. Future changes may include implement-

ing districts (North Carolina proposed redis-tricting under House Bill 717) and proposedconstitutional amendments to change thecurrently required party affiliated election bythe voters to a method other than throughdirect election by the people. The pendingconstitutional amendment may implementchanges for judicial vacancies.

Whether these changes, like others beforethem, will be successful or not, dependsupon whether the people choose to relin-quish their current constitutional right todirectly elect the trial and appellate judges.Past and recent polling indicates a superma-jority of voters want to retain their currentrights to elect their judges.118 n

Judge John M. Tyson was elected statewidein 2014 and presently serves as a judge on theNorth Carolina Court of Appeals and as a com-missioner on the Dispute ResolutionCommission. Previously, he served as chair ofthe North Carolina State Ethics Commission.He also served as an elected judge on the NorthCarolina Court of Appeals from 2001 until2009 and as a recall court of appeals judge andas special superior court judge from 2009 to2013.

Endnotes1. NC Const. art. IV, §§ 26-27 (1868).

2. Id.

3. Christopher Cooper & H. Gibbs Knotts, North Carolina’sJudicial System: The Forgotten Branch, The New Politics ofNorth Carolina 175, 184.

4. History of Reform Efforts: North Carolina; UnsuccessfulReform Efforts, National Center for State Courts (last vis-ited June 1, 2018, bit.ly/2Le0P7T.

5. Id.

6. Id.

7. See Cooper & Knotts, supra note 3, at 184.

8. Id.

9. History of Reform Efforts: North Carolina; UnsuccessfulReform Efforts, supra.

10. Id.

11. Id.

12. Id.

13. Robert N. Hunter Jr., Do Nonpartisan, Publicly FinancedJudicial Elections Enhance Relative Judicial Independence?,93 NC L. Review 1825, 1853-54 (2015) (discussing thechange from partisan to non-partisan superior court judi-cial elections).

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. See Cooper & Knotts, supra note 3, at 184.

20. Id.

21. Id.

22. History of Reform Efforts: North Carolina; Formal ChangesSince Inception, National Center for State Courts (last vis-ited July 13, 2017), bit.ly/2Lnhbbi.

23. Ariz. Free Enter. Club’s Freedom PAC v. Bennett, 564US 721, 180 L. Ed. 2d 664 (2011).

24. History of Reform Efforts: North Carolina; Formal ChangesSince Inception, supra.

25. Fannie Flono, Locke Foundation, Gov. McCrory in Lock-Step?, Charlotte Observer Opinion (Jan.7, 2013),bit.ly/2mn9AyL.

26. S. B. 458, 171st Gen. Assemb., Reg. Sess. (N.C. 2011).

27. Id.

28. N.C. Gen. Stat. §7A-4.1 (2015).

29. Cyrus Corbett V, To Elect or Retention Elect, that is theQuestion, Campbell Law Observer, April 18, 2016,bit.ly/2mk2ZoB.

30. Id.

31. Id.

32. Id.

33. Id.

34. Faires v. State Bd. of Elections, 368 N.C. 825, 825, 784S.E.2d 463, 464 (2016).

35. Id.

36. Alexandra Farone, North Carolina Lawmakers OverrideVeto to Make Judicial Elections Partisan, Jurist (March 24,2017, 7:07 AM).

37. Id.

38. Craig Jarvis, Shrinking of NC Appeals Court Becomes Lawas House, Senate Override Cooper’s Veto, The News &Observer (April 26, 2017), bit.ly/2Lp1jFo.

39. Matt Leerberg, Court of Appeals Downsizing Bill BecomesLaw & More Jurisdictional Changes for Supreme Court,North carolina Appellate Practice Blog (April 27, 2017),bit.ly/2LddZlP.

40. Rick Henderson, Choose Judges on Merit, Chief JusticeSays, Carolina Journal (June 24, 2017, 11:50 AM),bit.ly/2s7Epri.

41. Id.

42. Missouri Plan, Encyclopedia Britannica,bit.ly/2LkHQFv.

43. 2018 N.C. Sess. Laws 118.

44. Id.

45. Id. at § 1.

46. Id.

47. Id.

48. Id.

49. Id.

50. Id.

51. Id.

52. Alex Kotch, REPORT: North Carolina's 2016 StateElections Smashed Outside Spending Records, Facing South(February 22, 2017), bit.ly/2lwsSQE.

53. Id.

54. Id.

55. Id.

56. Id.

57. Id.



22 FALL 2018

These remarks were delivered by JudgeDonald W. Stephens shortly after his retirementfrom the bench at an event hosted by theEastern North Carolina Chapter of theAmerican Board of Trial Advocates onDecember 4, 2017, in Raleigh at which JudgeStephens was recognized for his years of serviceas a trial judge of the superior court.

After 33 years on the NorthCarolina Superior Court benchand having reached the manda-tory retirement age of 72, Iretired on November 1, 2017.

I was licensed to practice law in 1970, 47years ago. That was the year that the oldWake County Courthouse was dedicated andopened for business.

In 1970, there were about 500 lawyers inWake County. Today, we have close to 6,000lawyers in our Bar.

Many things have changed in the practiceof law over the last 47 years. However, therehas been one constant that has remained thesame throughout all those years—the client.These are real people whose side of a realstory may unfold in a courtroom in front of ajury of 12 citizens.

I asked Nick Ellis [the former president ofthe Eastern NC Chapter of ABOTA], whatdo you want me to talk about today, andwhat is my time allotment to speak? Headvised me to talk about trying jury cases forabout five to seven minutes. So, I need tocompress the hundreds of significant jury tri-als that I have presided over during the last 33years into five to seven minutes…I don’tthink that’s possible.

Instead, I decided to talk to you about thethings that worry me as I leave the trialbench. These are not the political things that

are happening in the North Carolina legisla-ture. They are the practical things happeningto trial lawyers.

Just like all of you, my great passion hasbeen the trial of jury cases, both as a lawyerand a judge. It is the essence of democracy. Itis the grand stage on which lawyers strut, andfret, and perform to an audience of 12 disin-terested strangers, selected randomly, whorepresent the moral conscience of their com-munity, as they engage in a search for justice.

When I tried my first jury cases in the1970s, citizens seemed to enjoy being on ajury. They accepted the jury summons as anopportunity to serve their community. Theysaw it as a responsibility of citizenship. Theyviewed jury service as an essential part ofAmerica. It was democracy in its purest form.

Very few summoned citizens asked to beexcused. They were a different generation

from today’s juror, and we did not demand asmuch time of those jurors.

The first capital case I prosecuted in theearly 1980s in Halifax County was tried infour days. Today, it would take two weeks topick the jury and another four weeks to trythat same case.

The first medical malpractice case Ipresided over as a judge in 1985 was complet-ed in a week. Today, it would probably takethree or four weeks to try that identical case.

The public at large simply does not havesix to eight weeks to give you to try your mal-practice case, or your personal injury case, oryour complex business dispute.

How many of you could afford to take offsix to eight weeks from your law practice to siton a jury? Imagine the average citizen, justbarely making ends meet, being required totake six weeks off from work to be paid no

As I Leave the Bench, WhatTroubles Me about Trial Lawyers

B Y T H E H O N O R A B L E D O N A L D W . S T E P H E N S

©iStockphoto.com

/Chris Ryan

more than $40 a day to sit on a jury.At the time I retired, we had to summon

200 jurors in Wake County to be sure that100 would show up. Of the ones who didshow up, very few wanted to be there. And,if selected, they expected to serve only a dayor two.

We need to find a way to streamline jurytrials so that disputed issues of fact can beresolved without taking weeks and weeks toget that done. If we don’t, we will all lamentthe demise of the jury trial—where no citizencan afford to serve, and where those who arecompelled to serve greatly resent being thereto the detriment of every lawyer and everyparty in the courtroom.

Just as I lament the potential demise of thejury trial, I lament the foreseeable passing ofyou, the trial lawyer.

I have presided over the trial of horrificcriminal cases and of every form of civil dis-pute you can dream up—from medical mal-practice cases and all the various forms of per-sonal injury cases, including those from vehi-cle accidents, to coffee spills at Starbucks, andthe slip and fall cases at the Winn-Dixie gro-cery stores.

Many of these cases were fascinatingbecause they involved people—trauma anddrama in the lives of real people. Theyinvolved the grist of what trial lawyers likeeach of you do. Trial lawyers are first and fore-most great speech makers and storytellers.They are the great courtroom performers.The courtroom is your stage.

But you are a dying breed. Who willreplace you? How will they learn how to bewho you are? Who will train them? Where arethe jury cases that they will need to try inorder to become as good as you are?

Where will we get real trial lawyers in thefuture? Lawyers who are known for their self-discipline and self-restraint. Who are knownfor what they choose not to say, not to do,and not to ask. Who are stingy with words,but the words they choose to use are powerfuland compelling. Trial lawyers who suffer foolspoorly and do not constantly repeat them-selves. Who do not talk for the mere sake oftalking. When a witness is tendered, the triallawyer who has the intelligence and courageto say, “no questions,” because the witness hasnot hurt his client nor said anything relevantto the disputed issues of fact.

The lawyer who knows how to ask a com-petent question which will not be subject toany objection and will require the witness tostate a fact or deny a fact. The lawyer who

speaks less, but when he does speak, says farmore than his verbose adversary can evencontemplate or comprehend. The lawyerwho wins all his motions because they allhave merit or, otherwise, he would not havemade them.

He is a lawyer who has great credibility,because he tries his cases on a higher plane,above the pettiness of personal attacks, andthe silliness of technicalities. He does notwaste time and prolong the burden of litiga-tion that is already oppressively burdensome.

The trial lawyer who is not so blinded bythe quest for money that he completely loseshis objectivity. Nor is he one that takes risksthat his clients can neither understand norafford.

He is a lawyer who can control is ownarrogance and his own ego, and sacrifice itfor the good of his client. He is a lawyer whofully understands that the case belongs to theclient, not to the lawyer. He is a lawyer whois truly honest with his client and with him-self and with the court.

This is a lawyer who is a true professional.Who knows there is no case, no cause, nocontroversy, no client that is more importantthan his own honesty, his own integrity, andhis own reputation.

He is a lawyer who knows that his charac-ter and his reputation are not for sale, nomatter what amount of money is available topurchase it. He is a lawyer who knows thatthe greatest tool of advocacy is civility. It canbe said about great trial lawyers that he or shewas one of the toughest lawyers I ever facedin a courtroom, and one of the nicest peopleI ever met.

As each of you retire, where will the realtrial lawyers come from? Who will replaceyou? Who will teach them?

I lament the rise of the litigator. He is nota trial lawyer. He is a legal technician. Heknows all the local rules and rules of civilprocedure. He loves discovery fights andmotion hearings. He writes 100-page briefsand he builds a dandy record on appeal,because there will be an appeal.

He admits nothing and fights everythingwith all his legal tools until his client can nolonger afford to fight or is too tired to fight.

He is not a trial lawyer. He is a litigator.He is a Rambo-gladiator. He will never be atrial lawyer.

As I leave the trial bench, I have a uniqueview from where I sit. I feel like the canary inthe coal mine.

I fear that many great trial lawyers, like

the people in this room, will be replaced bylitigators who do not know how to tell theirclient’s story to a jury.

I fear our jurors will no longer appreciatetheir role in this process and may refuse toshow up. Those who do come will have verylittle enthusiasm for their responsibility asfact-finders.

I fear that everyday people will cease tohave a champion—a true trial lawyer—totell their story.

You have the obligation to train thosewho come after you to be true trial lawyers.You have an obligation to find a way tostreamline our jury trials so jurors will againfeel honored to serve. I leave these concernsin your capable hands.

If we have tried cases together, I hope thatexperience made you a better lawyer, becauseI am sure it made me a better judge. I amhonored to have been invited to share mythoughts with you here today. n

Judge Donald W. Stephens served as a supe-rior court judge in Wake County, NorthCarolina, from December 31, 1984, until heretired on November 1, 2017, as the senior res-ident superior court judge for the 10th JudicialDistrict. He earned his BS and JD degrees fromthe University of North Carolina at ChapelHill in 1967 and 1970, respectively. Afterreceiving his law license in 1970, he served as atrial lawyer and trial judge in the United StatesMarine Corps JAG Division, as a prosecutingattorney in Durham County and as chief of theSpecial Prosecution Division of the NorthCarolina Attorney General’s Office.


2018

Lawyer’s

Handbook

You can download the freedigital version of the 2018 Lawyer’s

Handbook on the State Bar’swebsite: ncbar.gov/news-and-

publications/lawyers-handbook.

The 2018Lawyer’s Handbook

Administrative Rules . . . . . . . . . . . . . . .21Continuing Legal Education (CLE) . . . . . . .522Discipline and Disability . . . . . . . . . . . . . . .31Fee Dispute Resolution . . . . . . . . . . . . . . .59IOLTA . . . . . . . . . . . . . . . . . . . . . . . . . . .516Legal Specialization . . . . . . . . . . . . . . . . .532Membership . . . . . . . . . . . . . . . . . . . . . . .21Paralegal Certification . . . . . . . . . . . . . . . .71Professional Organizations . . . . . . . . . . . . . . .61Ethics Opinions . . . . . . . . . . . . . . . . . .101

Index to Ethics Opinions . . . . . . . . . . .10285Gen. Stat. Chapter 84 . . . . . . . . . . . . . .11IOLTA Q&A . . . . . . . . . . . . . . . . . . . . .111Rules of Professional Conduct . . . . . . .91Rules Index . . . . . . . . . . . . . . . . . . . . . .981

The North Carolina State Bar Lawyer’sHandbook 2018 (Abridged)An official publication of the North Carolina State Bar

containing the most frequently referenced rules of the

North Carolina State Bar, annotated Rules of Professional

Conduct, all ethics opinions adopted under the Rules and

Superseded (1985) Rules, and trust account guidelines.

N O RT H C A RO L I NASTATE BAR

On January 26, 2018,Chief Justice MarkMartin issued aproclamation declar-ing 2018 to be the“Year of Professional-

ism” in recognition of the 20th anniversaryof the creation of the Chief Justice’s Com-mission on Professionalism (CJCP). In doingso, he reminded us that the values describedin Article I, Section 35 of the North CarolinaConstitution, (“…A frequent recurrence tofundamental principles is absolutely necessaryto preserve the blessings of liberty...”), are ap-plicable with equal force to the study of pro-fessionalism because lawyers play a vital rolein the preservation of civil society and are animportant force in governing under law. Seee.g., North Carolina Rules of ProfessionalConduct, Preamble, A Lawyer’s Responsibil-ities, 0.1 [17], adopted July 24, 1997.

It has been 32 years since North Carolinaadopted a set of Rules of ProfessionalConduct (Rules) in a format recognizable totoday’s lawyers. Prior to that time, NorthCarolina lawyers were governed by a set ofcanons, disciplinary rules, and ethical con-siderations based on the American BarAssociation’s (ABA) 32 original Canons ofProfessional Ethics which, in turn, wereadopted in 1908 and re-drafted in 1969 intothe ABA Model Code of ProfessionalResponsibility. From the vantage point of2018, it is startling to learn that the Rulesapplicable to lawyers in North Carolinabefore 2003 were much the same as thosestudied by lawyers in 1836.

Widespread understanding among NorthCarolina lawyers of what professionalismmeans and how it is implicated in their prac-tice has evolved since 1986 due to the expan-sion and refinement of the Rules to include awell-defined duty of professional conduct.Unlike specific rules of conduct embodied inethics rules, the concept of professionalismrefers to a broader set of unchanging behav-ioral norms encompassing the entirety of alawyer’s behavior, both in and out of theoffice. Professionalism norms are generallyseen as aspirational and include the conduct,aims, or qualities that characterize or mark aprofession or a professional person, whichinclude the skill, good judgment, and politebehavior that is expected from a person whois trained to do a job well.

Over the years, the priority placed on thevirtues of professionalism has been a hall-mark of North Carolina practice, and theCJCP is a direct heir to this legacy.

The Origins of the CJCP and ModernNotions of Professionalism

It can be fairly stated that modernnotions of professionalism and legal ethics inthe United States grew out of the Watergatescandal in the early 1970s. At that time, legalethics was an elective, one-quarter creditcourse in most law schools that focused onspecific prohibited behaviors, such as lying,cheating, stealing from client accounts, andattorney advertising. As John Dean, WhiteHouse counsel to Richard Nixon, has noted,“In 1972, legal ethics and professionalismplayed almost no role in any lawyer’s mind,

including mine. Watergate changed that—for me and every other lawyer.”

Review of North Carolina Bar Magazine(now known as the NC State Bar Journal),reveals that North Carolina Bar leaders wereconcerned about the crisis in public confi-dence in government and the legal profes-sion, as a self-regulating profession, arisingfrom the revelation that 29 lawyers in theNixon administration were implicated inmisconduct or convicted of illegal activity. Inresponse, State Bar President Ralph H.Ramsey Jr. noted in his inaugural column in1973 that the State Bar was taking steps toimprove the quality and availability of legalservices in North Carolina. He sought “tobuild a better legal profession and to carryout our high calling as keepers and defendersof the liberties of the people.”1

24 FALL 2018

The CJCP: Two Decades ofPromoting the Shared Values ofProfessionalism

B Y L I S A M . S H E P P A R D

On a national level, the ABA reacted byforming a commission to evaluate whetherexisting standards of professional conductprovided comprehensive and consistentguidance for resolving the increasingly com-plex ethical problems in the practice of law.Known by the name of its chair, RobertKutak, the Kutak Commission spent thenext six years working on a complete restate-ment of the 1969 ABA Model Code ofResponsibility, then in effect in some form inall states, including North Carolina.

The enormity of the task and the contro-versy surrounding the Kutak Commission’srecommended changes to the 1969 ABAModel Code were based in part on the com-mission’s approach—viewed as radical at thetime—that lawyers have obligations to thesystem of justice above and beyond thatwhich they owe their clients.

This notion of a higher duty was embod-ied in a series of recommended amendmentsto the 1969 Model Code, including a pro-posed disclosure rule permitting lawyers todisclose client confidential informationabout corporate officers or employeesengaged in illegal activity. The KutakCommission also proposed a duty of fairnessin negotiations requiring disclosure of mate-rial facts and a requirement that lawyersengage in pro bono publico work. These pro-posals drew significant criticism and, as aresult, were not included in the final versionof the ABA Model Rules of ProfessionalConduct approved by the House ofDelegates in August 1983.

However, the connection between theconcept of lawyers having a higher duty tothe rule of law and the “Watergate defense,”infamously used by several of Nixon’slawyers—that their duty of confidentialityprevented them from disclosing illegal activ-ity by their clients—is clear in hindsight.

Another result of the public disgrace of somany prominent lawyers was a proliferationof required training in legal ethics and pro-fessionalism in law school curricula and inCLE programs, as well as additional barexamination questions focused on ethics andprofessional conduct.

Throughout the 1980s and 1990s, vari-ous state and national Bar organizations con-tinued the effort to clarify and strengthen thecodification of the legal profession’s ethicaland professional responsibilities. Of rele-vance here, the Conference of Chief Justicesresolved in 1996 to study and undertake

action to address lawyer professionalism. Theresult of this effort was a report issued by theconference entitled A National Action Planon Lawyer Conduct and Professionalism,which was adopted by the ABA on January21, 1999. The report and the Action Planwere published and distributed to state chiefjustices, lawyer disciplinary agencies, andstate Bar associations throughout the US.

The Action Plan specifically recommend-ed that state judiciaries should establish “…aCommission on Professionalism or otheragency under the direct authority of theappellate court of highest jurisdiction.”

At this time there were six state-level pro-fessionalism commissions: Florida, Georgia,New Jersey, Ohio, Oregon, and Texas.

The CJCP was formed in 1998 againstthis backdrop.

Creation of the CJCPIn 1997, Bill King, then-president of the

NC State Bar, and Jerry Parnell, the NC del-egate to the ABA House of Delegates, wereaware of the ABA Action Plan and broughtthe idea of forming a commission on profes-sionalism in North Carolina to then-ChiefJustice Burley Mitchell. Chief JusticeMitchell embraced the idea and created theCJCP by Order of the Supreme Court datedSeptember 22, 1998:

BY THIS ORDER, the Court issues tothe commission the following charge:The commission’s primary charge shallbe to enhance professionalism amongNorth Carolina’s lawyers. In carrying outits charge, the commission shall provideongoing attention and assistance to thetask of ensuring that the practice of lawremains a high calling, enlisted in theservice of clients and in the public good.(Emphasis added).The language italicized above in the

order reflects the impact of the Watergateevents and the subsequent evolution of theconcept of professionalism in NorthCarolina in the reference to the practice oflaw as a “high calling,” which directly tracksState Bar President Ramsey’s words from1973. It is also interesting to note that by1998 the practice of law encompassed thenotion of service to “the public good” inaddition to the service of clients; this wasone of the controversial concepts in theKutak Report rejected by the ABA 15 yearsearlier.

Fast forward to 2011. As chair of the

ABA Standing Committee onProfessionalism, Melvin F. Wright Jr., then-executive director of the CJCP, guided thewriting and publication of A Guide onProfessionalism Commissions - August 2011(ABA Professionalism Commission Guide).This document captures some of the historysummarized above and details the origins ofthen-existing state professionalism commis-sions. In the section describing NorthCarolina’s CJCP, the ABA ProfessionalismGuide states that the CJCP’s mission isembodied in its Lawyer’s ProfessionalismCreed:

To my clients, I offer competence, faith-fulness, diligence, and good judgement. Iwill strive to represent you, as I wouldwant to be represented, and to be worthyof your trust.To the opposing parties and their coun-sel, I offer fairness, integrity, and civility.I will seek reconciliation and, if we fail, Iwill strive to make our dispute a dignifiedone.To the courts and other tribunals, and tothose who assist them, I offer respect,truthfulness, and courtesy. I will strive todo honor to the search for justice.To the profession, I offer assistance. I willstrive to keep our profession a high callingin the spirit of pro bono and public service.To the public and our system of justice, Ioffer service. I will strive to improve the lawand our legal system, to make the law andour legal system available to all, and to seethe common good through the representa-tion of my clients. (Emphasis added).Comparing the principles highlighted

above in the Lawyer’s Professionalism Creedand the order creating the CJCP, with thoserejected in the Kutak Commission’s pro-posed Model Rules in 1983, we can see fur-ther evidence of the maturation of the con-cept of professionalism in North Carolinaover the intervening 28 years.

Today, North Carolina recognizes limit-ed exceptions to the duty of confidentiality,such as to prevent the commission of acrime by the client (NCRPC 1.6(b)(2)), andspecifically prohibits counsel from assisting aclient in conduct that the lawyer knows iscriminal or fraudulent (NCRPC 1.2(d)). Itis no longer controversial to hold lawyersaccountable for duties owed to the “publicand our system of justice” or to expect themto devote time to pro bono service.

The creation of the CJCP brought togeth-


er all of the energy that had been focused byNorth Carolina Bar leaders on ethics and pro-fessionalism, as influenced by the ABA, otherstate Bars, as well as national political andsocial upheavals, and gave it a home.

The Contribution of the CJCP Since1998

For the past 20 years, the CJCP has beendeveloping programming and initiativesdesigned to promote understanding byNorth Carolina lawyers of what the duty ofprofessionalism means and how to apply itin their practice. It has done that by offeringtraining, and support for training offered byothers, as well as a series of initiatives thatrecognize lawyers and judges who embodythe highest ideals of professionalism, as wellas guidance for those that fall short ofexpected standards of conduct.

Early activities of the CJCP include theadoption of the Professionalism Creed setforth above and, in 2000, the creation of aHistorical Video Series, consisting of videointerviews with distinguished lawyers andjudges from across the state to preserve theirthoughts and commentary on professional-ism and its evolution throughout the years.These videos serve as historical memoirs andhave been used for educational purposes inpresentations and CLE programs given bythe CJCP.

In 2001 the CJCP awarded the firstChief Justice’s Professionalism Award to rec-ognize lawyers who have exemplified princi-ples of professionalism in all aspects of theircareers. To date, 27 outstanding NorthCarolina lawyers and judges have receivedthis prestigious award. Many recipients ofthe Chief Justice’s Professionalism Awardhave been interviewed for the HistoricalVideo Series.

From its inception, the CJCP has devel-oped materials and offered presentations forCLE programs and law school professionalresponsibility classes. The CJCP also beganoffering assistance to other organizationsthrough grant-making to support profes-sionalism initiatives in 2003, and the firstrecipients were North Carolina law schools.Over the years, the CJCP has also madegrants to the Equal Access to JusticeCommission, the NC Bar Association, andlocal Bar organizations and their individualprofessionalism initiatives.

Seeking to provide assistance to NorthCarolina judges, the CJCP formed the

Judicial Response Committee, which is avail-able to respond to unwarranted attacks in themedia on the judiciary. Another significantproject undertaken by the CJCP was the for-mation of the Professionalism SupportInitiative (PSI), which serves as a confidentialpeer intervention program to improve pro-fessionalism among lawyers and judges.

As part of its mission to serve all lawyersin North Carolina, the CJCP has also takenits programming on the road by sponsoring,in conjunction with Lawyer’s Mutual, pro-fessionalism CLE and luncheon programswith the local North Carolina JudicialDistrict Bars. Over the past 15 years, theCJCP has held these programs in 39 ofNorth Carolina’s 44 judicial districts, total-ing 49 programs. In 2018 the CJCP isscheduled to sponsor six programs through-out the state in conjunction with the NorthCarolina Supreme Court’s 200thAnniversary historic courthouse visits, fromAsheville to New Bern.

Throughout the years, the CJCP has alsoparticipated in professionalism-related activ-ities on a national level, representing NorthCarolina at conferences, boards, and pro-grams, including at the ABA and its Centerfor Professional Responsibility.

Anniversary Celebration Activities in2018

The CJCP kicked off a series of eventscelebrating its 20th anniversary with a pressconference by Chief Justice Martinannouncing his proclamation of the “Year ofProfessionalism.” Throughout 2018, theCJCP has highlighted an event each monthwhere its anniversary videos are screenedand its mission and history are explained toaudiences throughout North Carolina. Thevideos were produced to capture the historyof the commission and its vision for thefuture, and they are available for viewing onits dedicated YouTube channel.

As part of the 20th Anniversary celebra-tion, the CJCP has established a new pro-gram, the Law School Ambassador Program,in collaboration with North Carolina’s lawschools. The program offers a distinguishedthird year law student selected by eachNorth Carolina law school the opportunityfor engagement with and service on thecommission as a non-voting participant. Welook forward to this program becoming aprestigious and valuable opportunity for lawstudents in the years to come.

Esse Quam Videri - The Fruits of aFrequent Recurrence to FundamentalPrinciples

Professional conduct by lawyers, judges,and law students is a foundational and inte-gral part of all of the mundane aspects of thepractice of law, in any practice area and atevery stage of the legal process. We do notrecognize it as such because it is so embeddedin all that we do. It has been my observationthat most North Carolina lawyers and judgesrecognize unprofessional conduct when theysee it. I attribute this to the efforts of lawschools to educate law students on thebounds of appropriate behavior; evolvingCLE requirements and the widespread avail-ability of training, including that providedby the CJCP; a consensus in local Bar associ-ations of proper behavior; and, most impor-tantly, active formal and informal mentoringin law firms and local Bars. All of these activ-ities have contributed to the fact that profes-sional conduct has become habitual amongthe majority of North Carolina lawyers.

As lawyers, we practice law in a widerange of environments: in solo practices andlarge, multinational law firms, in corporatecounsel offices, government, and legal servic-es organizations. We also practice in smalltowns, cities with large and small popula-tions, in the mountains, the foothills, andthe piedmont, in verdant farming towns andon the Atlantic coast and the Outer Banks.However, we all share a common under-standing of the expectations of professionalconduct as part of a larger community ofshared values and behavioral norms.

In recognition of this shared value, theCJCP adopted the state motto, “esse quamvideri” as its watchword in its re-brandingefforts this year. You will see it on all CJCPmaterials, staff business cards, and stationery.Hopefully, the meaning of this phrase in thiscontext is clear: it is a reminder to NorthCarolina lawyers to treat everyone with dig-nity and respect, in all aspects of their lives,when it is uncomfortable and difficult, aswell as when it is convenient and expedient,to actually be professional, rather than tomerely seem so.2

In closing, Justice Sandra day O’Connorsummarized a lawyer’s duty of professional-ism well when she observed,

To me, the essence of professionalism is acommitment to develop one’s skills to the


26 FALL 2018


Five Ways to Cultivate CreativityAlongside Practicing Law

B Y H E A T H E R B E L L A D A M S

At recent signing events for my debutnovel, people have remarked about howmany lawyers seem to harbor a secret (or insome cases not so secret) desire to write fic-tion. This has struck me too, having longadmired lawyer-writers such as HeatherNewton (Under the Mercy Trees 2011) andKim Church (Byrd 2014).

In fact, I think the desire to create goeswell beyond writing fiction. At the end of abusy day at the office, many successfullawyers compose or perform music. Or writepoems. They might sketch or paint. Or makepottery. Or any number of other fascinatingpursuits.

Sometimes these creative endeavors serveas an escape—a hobby, wedged betweenclient negotiations and dinner preparation.Sometimes they are in effect a second career.Either way, when lawyers talk about theirdesire to do something creative, an under-standably common refrain is lack of time orinspiration. I don’t pretend to have theanswer. I often feel as though I’m “doing” alot, but none of it well. Nonetheless, the con-versation is absolutely worth having. Even inthe midst of “busyness,” what are some waysto nourish our creative side?1. Cast Aside Expectations of Perfection

It’s easy to fall into the “if only” trap. Ifonly I had a dedicated painting studio. Ifonly my kids weren’t so loud. If only I couldunearth that perfect pen I used to have, theone with the not-too-thick, not-too-thin tip.

Day-to-day reality can be a lot messierthan our ideal scenarios. But why should welet that stop us? A free hour in a cushionychair sipping hot tea by the fireplace wouldbe awfully nice. But it’s not necessary.

Once we cast aside our expectations ofperfection, we make room for creativity to

flourish in the midst of our messy everyday.2. Work with What You Have

Maybe we can find ten minutes while inline to board a flight. What about whenyou’re waiting for the after-hours printerrepair service? Maybe try brainstorming ideasfor your next project while commuting tothe office. (Eyes on the road, of course.)

Working with what we have might meancutting back on social media. It’s tempting tocheck our accounts in every spare moment.When I’m on a writing deadline for an editoror agent, I delete the social media apps frommy phone. Maybe next time I’ll try not to bein such a rush to get them reinstalled.3. Experience Art as Well as Create It

When you’re looking for inspiration, con-sider studying artistic photographs or lis-ten—really listen—to a favorite song. Forme, this can mean re-reading a passage froma novel I’ve recently enjoyed.

About a year ago, I was out of town for adeposition when the entire schedule gotdelayed. Since I’d already prepared for thedeposition (and billed more than enoughhours), I gave myself permission to wanderaround the Philadelphia Museum of Art.Not only did the brief excursion renew myenergy, I also came away with a new storyidea. 4. Spend Time with Others

Self-doubt can lead us to keep our cre-ative aspirations to ourselves. But findingothers who share our interests provides theopportunity to vent frustrations andexchange ideas. A single lunch with afriend—even if it’s a quick bite on the court-house steps—can fuel our creative energiesfor days to come.5. Forgive Yourself

Let’s say—hypothetically of course—that

you spent your entire lunch break grumblingat the news feed on your phone. What now?No need to chastise yourself. Just as we dealpatiently with clients and co-workers, we cantreat ourselves with the same graciousness.Perhaps tomorrow you’ll write the startingparagraph of your new novel or the openingnotes of that song you’ve been humming.

By letting go of negativity and unrealisticexpectations, by shifting our gaze to art andtoward others traveling the same journey, wecan encourage creativity to bloom. n

Heather Bell Adams has practiced law inRaleigh for 20 years, focusing on financial serv-ices and antitrust litigation, including classaction defense. Currently senior counsel at First-Citizens Bank & Trust Company, she is theauthor of various short stories and MaranathaRoad, an award-winning novel set in westernNorth Carolina. You can find her at heather-belladams.com.

©iStockphoto.com

/HEPA

LMER

28 FALL 2018

DisbarmentsWallace Bradsher of Roxboro surren-

dered his law license and was disbarred by theWake County Superior Court. Bradsher hadbeen the elected district attorney for Personand Caswell counties. He was disbarred inconnection with his conviction for felonyobstruction of justice, misdemeanor obstruc-tion of justice, misdemeanor willful failure todischarge duties, felony obtaining propertyby false pretenses, and aiding and abettingobtaining property by false pretenses.

Lawrence Wittenberg of Durham surren-dered his law license and was disbarred by theWake County Superior Court. Wittenbergacknowledged that he misappropriated atleast $170,000 from his law firm employer.

Suspensions & Stayed SuspensionsPhilip Adkins of Snow Camp violated

multiple trust account rules, including notmaintaining required trust account records,not performing required reconciliations, andnot producing trust account records inresponse to a subpoena for random audit.Adkins was suspended by the DisciplinaryHearing Commission for two years. The sus-pension is stayed for two years upon his com-pliance with enumerated conditions.

The DHC found that Gladys NicholeClayton of Durham violated multiple trustaccount rules, including not conductingmonthly and quarterly reconciliations, notalways identifying clients for whom cashdeposits were made, and not always identify-ing clients on trust account checks. Claytondid not provide the reconciliation requestedby the State Bar following a random auditand did not respond to all inquiries of theGrievance Committee. When Clayton laterprovided reconciliation documents, she usedwhite-out tape to conceal the dates when thesupporting documents she provided to theGrievance Committee were actually printedin an attempt to mislead the GrievanceCommittee about when she performed thereconciliations. Clayton made misrepresenta-tions to the Grievance Committee about

when the reconciliations were prepared andwhy white-out was applied to the docu-ments. The DHC found significant mitigat-ing circumstances. It suspended Clayton forfour years. After serving six months of activesuspension, she will be eligible to apply for astay of the balance upon demonstrating com-pliance with enumerated conditions.

Jeffrey Dalrymple of Matthews violatedmultiple trust account rules, including notconducting required reconciliations, main-taining inaccurate client ledgers, and com-mingling his personal funds with entrustedfunds. The DHC suspended him for threeyears. The suspension is stayed for threeyears upon his compliance with enumeratedconditions.

Daniel Reid Fulkerson of Boone did notfile and/or pay state and federal income taxesfor the years 2010 through 2016. The DHCsuspended him for two years. The suspensionis stayed for two years upon his compliancewith enumerated conditions. Fulkerson iscurrently on voluntary inactive status. Thesuspension will begin to run if he should suc-cessfully petition for return to active status.

Mark V. Gray of Greensboro did not filefederal or state tax returns and did not payfederal or state income taxes from 1997through 2005 and from 2008 through 2014.The DHC suspended him for four years.After serving 18 months of active suspension,he will be eligible to apply for a stay of thebalance upon demonstrating compliancewith enumerated conditions.

Cindy Huntsberry of Smithfield violatedmultiple trust account rules, including notperforming monthly and quarterly reconcili-ations, not identifying clients on trustaccount checks, not maintaining ledgers, notescheating unidentified or abandoned funds,commingling her personal funds withentrusted funds, and disbursing more fundsfor a client than she held in trust for the ben-efit of that client. She also did not respond tothe Grievance Committee. The DHC sus-pended Huntsberry for five years. After serv-ing one year of active suspension, she will beeligible to apply for a stay of the balance

upon demonstrating compliance with enu-merated conditions.

Kenneth Jones of Smithfield violatedmultiple trust account rules, including notreconciling his trust account, not maintain-ing accurate ledgers, and not supervising hisstaff ’s efforts to monitor his trust account.The DHC suspended Jones for two years.The suspension is stayed for three years uponhis compliance with enumerated conditions.

Michael Parker of Mocksville did nottruthfully account for and timely pay overtaxes withheld from employee paychecks, didnot remit to a client all funds he collected forthe client, and took on new legal work whilehe was administratively suspended. TheDHC suspended him for five years. Afterserving two and one-half years of active sus-pension, he will be eligible to apply for a stayof the balance upon demonstrating compli-ance with enumerated conditions.

Julie Parker of Mocksville did not truth-fully account for and timely pay over taxeswithheld from employee paychecks. TheDHC suspended her for five years. Afterserving 18 months of active suspension, shewill be eligible to apply for a stay of the bal-ance upon demonstrating compliance withenumerated conditions.

Scott Shelton of Hendersonville violatedmultiple trust account rules, including notreconciling his trust account; not identifyingclients on checks, deposit slips, and electronicwire transfers; not providing written account-ings to clients with funds on deposit for morethan 12 months; not escheating unidentifiedor abandoned funds; not instructing his bankto notify the State Bar when an item was pre-sented for payment against insufficientfunds; and disbursing more funds for a clientthan were on deposit for that client. TheDHC suspended Shelton for three years.After serving one year of active suspension,he will be eligible to apply for a stay of thebalance upon demonstrating compliancewith enumerated conditions.

Jeffrey D. Smith of Charlotte violatedmultiple trust account rules, including notconducting required monthly and quarterly

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

Grievance Committee and DHC Actions


reconciliations, not promptly reimbursing anegative balance, not conducting requiredreviews for two quarters, not promptlydepositing funds into the trust account, dis-bursing funds to a client for whom entrustedfunds had not yet been deposited, improperlydisbursing funds to himself on two occasions,not identifying the clients for whom he heldfunds, and not promptly disbursing entrust-ed funds. The DHC suspended Smith fortwo years. After serving one year of active sus-pension, he will be eligible to apply for a stayof the balance upon demonstrating compli-ance with enumerated conditions.

Christopher Watkins of Graham violatedmultiple trust account rules, including notreconciling his trust account, not maintain-ing accurate ledgers, and disbursing funds onbehalf of a client for whom sufficient fundshad not been deposited. The DHC suspend-ed Watkins for three years. After serving sixmonths of active suspension, he will be eligi-ble to apply for a stay of the balance upondemonstrating compliance with enumeratedconditions.

William Webb of Raleigh violated multi-ple trust account rules, including not recon-ciling his trust account, not maintainingaccurate ledgers, and not supervising hisstaff ’s efforts to monitor his trust account.The DHC suspended Webb for two years.The suspension is stayed for two years uponhis compliance with enumerated conditions.

CensuresThe Grievance Committee censured Ruth

Allen of Raleigh, Rashad Blossom ofCharlotte, Florence Bowens of Durham,Lloyd Brisson Jr. of Fayetteville, Richard L.Cannon of Greenville, Lynn Ellen Colemanof Kernersville, Roger Compton ofFayetteville, Christopher Lane of Clemmons,Robert Lefkowitz of Winston-Salem, JoshuaLevy of Raleigh, and Lisa Perrillo of Raleigh.While working for “Upright Law,” a law firmbased in Chicago, they did not supervise theirout-of-state nonlawyer assistants in the provi-sion of legal services and in handling theirclients’ entrusted funds.

ReprimandsJerry B. Clayton, Ronald G. Coulter,

Robert D. McClanahan, and Robert W.Myrick of Durham were reprimanded by theDHC. They did not ensure that their lawfirm’s trust account was timely reconciled,despite notice that the lawyer to whom the

firm had entrusted the responsibility was notperforming the required reconciliations.They also made numerous inaccurate state-ments to the State Bar concerning reconcilia-tions of the trust account based upon infor-mation submitted by the firm memberresponsible for the reconciliations withoutverifying the information. In addition to thereprimands, the DHC required them tocomplete continuing legal education on trustaccount reconciliation.

Corry J. Brannen of Charlotte was repri-manded by the Grievance Committee.Brannen’s cousin, who was indicted in NewYork for attempted murder and other seriousfelonies, fled to North Carolina. Brannenmade several false statements to the USMarshals Service in their fugitive investiga-tion. The Grievance Committee concludedthat a reprimand was appropriate because ofmitigating circumstances.

The Grievance Committee reprimandedJohn O. Lafferty Jr. of Lincolnton. He didnot file a required estate inventory, did notreasonably communicate with his client, and,in two grievance files, did not respond timelyto the Grievance Committee.

The Grievance Committee reprimandedBlair Pettis of Lincolnton. Pettis did notmeet with or communicate with a clientdespite numerous requests from the clientand the client’s family, did not act with rea-sonable diligence in the representation, didnot withdraw when it was clear he could notprovide the required legal services, and didnot respond to the Grievance Committee.

The Grievance Committee reprimandedNichole Phair of Sanford. After one judgecontinued the hearing on Phair’s motion foran emergency custody order, Phair took themotion to a second judge. She did notinform the second judge that the motion hadalready been continued by another judge orthat the opposing party was represented bycounsel. The second judge rescinded theorder the following day upon finding thatPhair’s conduct violated the local rules of thejudicial district; that the order was obtainedby misrepresentation, fraud, or other miscon-duct; and that the opposing party was pre-vented from having a fair trial.

The Grievance Committee reprimandedJeffrey Philogene of Chicago. In working forUpright Law, a law firm based in Chicago,Philogene engaged in the unauthorized prac-tice of law by providing legal advice andservices to residents of states in which he is

not licensed.Sonya Whitaker of Rocky Mount was

reprimanded by the Grievance Committeefor making a false statement to theAdministrative Committee of the State Bar.Whitaker filed a petition for reinstatement ofher law license after an administrative sus-pension. In the petition she falsely represent-ed that she had no disciplinary complaints,investigations, or actions pending before aprofessional licensing organization. In fact,Whitaker was aware of a pending investiga-tion by the Grievance Committee.

Transfers to Disability Inactive StatusSusan R. Franklin of Chapel Hill was

transferred to disability inactive status by thechair of the Grievance Committee. TonySami Botros of Raleigh was transferred to dis-ability inactive status by the Wake CountySuperior Court.

Reinstatements from DisabilityInactive Status

Heather Anne Shade of Fairview wasreinstated from disability inactive status bythe DHC.

Reinstatements from SuspensionJoel M. Bresler of Lakeland, Florida, was

suspended for 91 days by order of reciprocaldiscipline effective January 11, 2018. TheSupreme Court of Florida suspended Breslerfor 91 days in January 2015. Bresler was awitness in the federal prosecution of his for-mer employer and was granted immunity.Bresler drafted a false promissory note for theformer employer, destroyed his own bankrecords at the direction of the formeremployer, and exaggerated to law enforce-ment the extent of his attorney-client rela-tionship with the former employer. He wasreinstated by the secretary on April 30, 2018.

Stays of Existing SuspensionsIn June 2016 the DHC suspended Sean

David Soboleski of Asheville for three years.He did not properly reconcile his trustaccounts, did not maintain accurate clientledgers, and did not properly maintain anddisburse entrusted funds. As a result, he dis-bursed client funds for purposes other thaninstructed by the client and received pay-ments for legal fees before the fees wereearned. After serving six months of active


30 FALL 2018

North Carolina Roots in Lawyer WellnessB Y L A U R A M A H R

P A T H W A Y S T O W E L L B E I N G

In 2003 Judge Horn authored LawyerLife:Finding a Life and a Higher Calling in thePractice of Law. During our conversation, Iasked him what motivated him to writeLawyer Life 15 years ago, and he responded,“I wanted to point out some troubling trendsin the legal field, and to suggest some philo-sophical, practical, and spiritual steps lawyerscan and should take to maintain balance andfind professional fulfillment.” My conversa-tion with Judge Horn reminded me that whilethe issue of lawyer wellbeing is recently pickingup momentum, the concern has been alivefor many years. I so enjoyed our conversation,I interviewed Judge Horn for this quarter’scolumn so that he can share with readers whatshapes his perspective on maintaining balancein the legal field.

Laura: Who helped to shape your profes-sional values and what initially sparked yourinterest in lawyers having a better quality oflife?

Judge Horn: The seeds that shaped myprofessional values and priorities were first

sewn by observing three lawyers in my ownfamily: my great uncle (Guy Carswell, whopracticed in Charlotte), my uncle (JudgeRichard “Dick” Emmet who practiced inMontgomery, Alabama), and my father.

My Uncle Guy was a very successful triallawyer (and astute investor) who made lots ofmoney. During his life and at his death, hegave most of it away. Thanks to his generosity,there were many hundreds of men and womenfrom less affluent families who were able toget college educations (beginning with thechildren of his mailman and a garbage collectorwith whom he became friends). My UncleDick, a progressive in the heart of the JimCrow South, was also one of my heroes. I re-call, for example, when the chief justice of theAlabama Supreme Court refused to swear inthe first African American elected to the Ala-bama Legislature since Reconstruction. Myuncle immediately stepped up and said hewould be pleased and honored to do it.

While I admired and emulated much aboutmy father, who finished his career as president

and CEO of Duke Power Company, therewere a few of his qualities I hoped to improveupon. Specifically, I hoped to forge closer andmore fulfilling relationships with my childrenthan he had the time to develop with his. Andof course, you can’t do that without intention-ally striving for a healthy work-life balance,which was in the forefront of my mind eachtime I came to a fork in my career path.

Laura: You started practicing in 1976, butdidn’t publish your book until 2003. Werethere changes in those 27 years that motivatedyou to write LawyerLife?

Judge Horn: By 2003 there was a growingconsensus that law was a profession in crisis.Anecdotal evidence of lawyer unhappiness—including eight lawyer suicides in a seven-yearperiod in Charlotte—was followed by a seriesof state and federal surveys to determine thescope and contours of the problem, and todevelop effective ways to help lawyers whowere struggling. One of the most extensivesurveys was conducted by the NC Bar Associ-ation in 1989 and published in 1991. Report-

One of the most enjoyable aspects

of authoring this column is the

positive response from lawyers

and judges around the state. It is

inspiring to hear from readers that the content of the column res-

onates, and that the issue of lawyer wellbeing is galvanizing individual lawyers and organizations alike. I was thrilled to receive a call from

one such reader, Charlotte attorney and former judge, Carl Horn III.

©iStockphoto.com

/Juergen Sack

ing what was described as “a severe level ofdissatisfaction with law practice among someattorneys, and lost dreams and idealism amongmany others,” the statewide survey found that:n 24% of the North Carolina lawyerswho responded would not become attor-neys if they could make the decision again;n Only 54% wished to remain in lawpractice for the remainder of their careers;andn Over 24% reported symptoms of de-pression “at least three times per monthduring the past year,” with 11% reportingthey had considered suicide at least once amonth during the past yearLawyer dissatisfaction with their profes-

sional lives—and the toll it was taking on theiroverall quality of life—was not unique to ormore pronounced in North Carolina than else-where. ABA surveys in 1984 and 1990, forexample, found a 20% drop during those sixyears alone in the number of lawyers describingthemselves as “very satisfied.” In the 1990 sur-vey, 22% of all male partners and 43% of allfemale partners reported that they were dis-satisfied with their professional lives. For solopractitioners, the reported dissatisfaction raterose to 43% of all men and to an astounding55% of all women.

These and other survey results were con-sistent with research at Johns Hopkins Uni-versity reported in 1990. The Johns Hopkinsstudy examined the prevalence of “major de-pressive disorder” in 104 different occupa-tions (including the professions as “occupa-tions”). The research found only five of the104 occupations in which the occurrence ofmajor depression exceeded ten percent—andlawyers topped even this list, suffering frommajor depression at a rate 3.6 times higherthan nonlawyers with the same socio-demo-graphic traits.

There were also scholarly books and articleswritten in the 1990s that caught my attention,beginning with Yale Law School Dean An-thony Kronman’s The Lost Lawyer, subtitledFailing Ideals of the Legal Profession, publishedby Harvard University Press in 1993. In wordsusually reserved for the pulpit, Dean Kronmanpronounced that what we were facing was a“spiritual crisis” in which “the profession nowstands in danger of losing its soul.” About thesame time Sol Linowitz, chair of Xerox Cor-poration and an ambassador in several presi-dential administrations, expressed kindred con-cerns in The Betrayed Profession, as didlawyer/psychotherapist Benjamin Sells in The

Soul of the Law, and Harvard Law School Pro-fessor Mary Ann Glendon in her 1994 book,A Nation of Lawyers.

Laura: That said, are you one of the 24%of lawyers who wouldn’t become an attorneyif you could make the decision again?

Judge Horn: Absolutely not; I remainproud to be a lawyer. I have truly enjoyed thevarious phases of my almost 42-year long legalcareer, and I would choose our profession againwithout hesitation. But I do believe there aresteps we can take, practices and habits we canadopt, and practices and habits we should def-initely avoid, if we hope to find satisfactionand fulfillment in the contemporary practiceof law.

Laura: What is the first step you recom-mend to find fulfillment in the practice oflaw?

Judge Horn: The first step we can take isto be aware that there are choices for us tomake—and that there are professional andpersonal consequences which flow from thosechoices. We can, for example, educate ourselveson—and even be inspired by—the noble rootsof our profession, which saw itself as a callingto serve and help others and to seek truth andjustice, or we can accede to the more recentand far less inspiring view of law as no morethan a “value- free,” dollar-driven business.

Laura: You quote the Yale Law SchoolDean’s emphasis on lawyers adhering to certainvalues. Why do you think that’s important?

Judge Horn: Dean Kronman suggested that“an older set of values” should be reinvigorated,including the pursuit of “wisdom about hu-man beings and their tangled affairs.” Whenwas the last time, if ever, you have heard theword “wisdom” used in connection with thepractice of law? I believe that we should care,as individuals and as a profession, more aboutjustice and truth than about winning at anycost or doing anything and everything to max-imize our bottom lines.

I would like all lawyers to ask themselves,“What do we individually and collectivelyvalue?” Is it those who are charitable with theirtime and resources? Those who are passionateabout a cause and sacrifice to advance it? Thosewho transcend narrow self interest, reachingout helping hands or giving of their time andresources in a meaningful way to those whoare less fortunate? Have we lost sight of thecentral importance of nurturing our familiesand close friendships and making our rela-tionships a clear, high, and life-long priority?

Laura: What do you think will help lawyers

to prioritize their relationships with family andfriends?

Judge Horn: Sometimes we need a wake-up call before we understand the importanceof the people in our lives. I recall a conversationin chambers with Keith Tart, then a partnerin a large North Carolina firm who had a na-tional toxic torts practice and had been ad-mitted pro hac vice in over 30 state and federalcourts, so you can imagine how much timehe was spending at home. Keith told me thathe got his wake-up call when his first-gradedaughter was asked in school to draw a pictureof her family. He wasn’t in the picture! Thefamily dog was, but he wasn’t.

We take a major step in the right directionif we simply commit to applying the GoldenRule in our professional lives: treating oth-ers—including our clients, opposing counsel,and their clients—as we ourselves wish to betreated. It perhaps goes without saying thatthis implies civility, honesty, and unimpeach-able ethics, including scrupulous honesty inour billing practices.

Laura: One of the chapters in LawyerLifeis titled “Twelve Steps Toward Fulfillment inthe Practice of Law.” Can you briefly summa-rize the steps?

Judge Horn: I constructed what I call “theworld’s first 12-Step program exclusively forlawyers” partly tongue in cheek, although therecommendations are seriously intended. In aquick nutshell the “steps” or recommendationsare: (1) Conduct a professional and personalself-evaluation; (2) Establish clear priorities;(3) Develop and practice good time manage-ment; (4) Implement healthy lifestyle practices(especially regular exercise); (5) Live beneathyour means; (6) Don’t let technology controlyour life; (7) Care about character—and con-duct yourself accordingly; (8) “Just say no” tosome clients; (9) Stay emotionally healthy;(10) Embrace law as a “high calling”; (11) Begenerous with your time and money; and (12)Pace yourself for a marathon.

Many thanks to Judge Horn for sharinghis words of wisdom with readers this month.If you are inspired to put into action any ofhis suggestions on finding fulfillment in thepractice of law, try this:

1. Schedule a 20 minute break—find atime and place where you can focus.

2. Read Judge Horn’s interview again, thistime slowly.

3. As you read, circle the recommendationin Judge Horn’s interview you found mostcompelling (i.e., his invitation to ponder what


32 FALL 2018

it is that you value, or one of the “Twelve StepsToward Fulfillment”).

4. Set a timer for ten minutes. Free-write(i.e., write continuously without regard togrammar, spelling, or syntax) for ten minutesabout ways you personally can respond to thecircled call to action.

5. When your writing time is up, read whatyou wrote, then circle the most meaningful orcompelling sentence in what you wrote.

6. Calendar an action step, or time to thinkmore about, or share with someone else whatyou wrote.

If you would like to connect with otherlawyers who are interested in lawyer wellbeingwhile cultivating your own resilience usingmindfulness, join Laura as she presents at theseupcoming NC events:

9/7/18: “What Every New/Young LawyerNeeds to Know about Building Resilience Us-ing Mindfulness and Neuroscience,” NCBA’s

YLD CLE, Cary (Co-sponsored by NCLAPand NCBA YLD)

9/18: “A Joyful Life: Finding Ease and Sat-isfaction in the Practice of Law” (on-going vir-tual program with Jeena Cho, jeenacho.com/career)

9/21/18: “Mindfulness and Neurosciencefor Building Resilience to Stress,” 30th JudicialDistrict CLE, Waynesville (sponsored byNCLAP)

10/4/18: “Mindfulness for Lawyers toBuild Resilience to Stress” (one hour onlineCLE) (consciouslegalminds.com/register)

10/11-11/1: “Mindfulness for Lawyers:Building Resilience to Stress Using Mindful-ness, Meditation, and Neuroscience” (fourweek online course, consciouslegalminds.com/register)

10/12/18: Resilience Retreat for Immigra-tion Lawyers and Support Staff, Asheville (con-sciouslegalminds.com/register)

11/14/18: “Mindfulness and Neurosciencefor Building Resilience to Stress,” 10th JudicialDistrict CLE, Raleigh (co-sponsored byNCLAP) n

Laura Mahr is a NC lawyer and the founderof Conscious Legal Minds LLC, providing mind-fulness-based coaching, training, and consultingfor attorneys and law offices nationwide. Laura’scutting edge work to build resilience to burnout,stress, and vicarious trauma in the practice oflaw is informed by 11 years of practice as a civilsexual assault attorney, two decades of experienceas an educator and professional trainer, 25 yearsas a student and teacher of mindfulness and yoga,and a love of neuroscience. She is an advisorymember of the 28th Judicial District’s WellnessCommittee and the author of the Mindful Mo-ment column in the North Carolina Lawyer As-sistance Program’s quarterly newsletter. Find outmore about her work at consciouslegalminds.com.

Disciplinary Department (cont.)suspension, Soboleski was eligible to applyfor a stay of the balance upon showing com-pliance with enumerated conditions. TheDHC reinstated him on April 26, 2018.

DismissalsIt was alleged that Joe S. Major III of

Charlotte misappropriated fiduciary fundsand obtained real property through construc-tive fraud. It was also alleged that, in an unre-lated matter, Major did not maintain properrecords, did not properly account for estateassets, and disbursed funds pursuant to apower of attorney that had been revoked bythe principal’s death. He was enjoined fromhandling entrusted funds. In April 2018 theDHC found probable cause to believe Majorwas disabled and instructed the State Bar tofile a complaint alleging disability. The disci-plinary proceeding was stayed and Major wasordered to undergo evaluation. Major diedon June 13, 2018. The State Bar filed a noticeof voluntary dismissal of the disciplinary anddisability matters.

Notices of Intent to SeekReinstatement

In the Matter of David Shawn ClarkNotice is hereby given that David Shawn

Clark intends to file a Petition forReinstatement before the DisciplinaryHearing Commission of the North CarolinaState Bar. On September 14, 2012, Clarkpled guilty in Catawba County to twocounts of misdemeanor communicatingthreats in violation of NC Gen Stat 14-277.1and in Catawba County to one count ofcommon law obstruction of justice. Theguilty pleas stemmed from allegations thatClark engaged in a sexual relationship with acurrent client and threatened the client andhis secretary if they divulged their knowledgeof the relationship. Clark was a candidate fordistrict attorney of the 25th judicial districtat the time. Clark provided false representa-tions to the Bar after the grievance was filed.On October 30, 2013, an Order ofDiscipline was entered disbarring Clark fromthe practice of law.

In the Matter of Robin Nicole KnightKrcelic

Notice is hereby given that Robin NicoleKnight Krcelic of Charlotte intends to file apetition for reinstatement before theDisciplinary Hearing Commission of TheNorth Carolina State Bar. Knight was dis-barred effective January 31, 2005, and sur-rendered her license on January 26, 2005.The complaint was that while operating thelaw practice, client funds received from real

estate closings were misappropriated.Subsequent findings after surrender of herlaw license and disbarment found that a non-lawyer assistant in her law office embezzledclient funds.

In the Matter of Geoffrey H. SimmonsNotice is hereby given that Geoffrey H.

Simmons of Durham intends to file a peti-tion for reinstatement before theDisciplinary Hearing Commission of theNorth Carolina State Bar. Simmons was dis-barred effective April 15, 2013, after a hear-ing before the Disciplinary HearingCommission. The DHC found thatSimmons failed to properly maintainentrusted funds in violation of Rule1.15.2(a) , failed to properly disburse clientfunds in violation of Rule 1.15.2(m),engaged in criminal conduct reflectingadversely on his honesty, trustworthiness, orfitness as a lawyer in violation of Rule 8.4 (b),and engaged in conduct involving dishon-esty, fraud, deceit, or misrepresentation inviolation of Rule 8.4(c).

Individuals who wish to note their con-currence with or opposition to these peti-tions should file written notice with thesecretary of the North Carolina State Bar,PO Box 25908, Raleigh, NC, 27611,before November 1, 2018 (60 days afterpublication).


A few months ago, Peter Bolac, the StateBar’s legislative liaison, was dusting off histor-ical State Bar Council meeting minutes. Hecame across minutes from the council meet-ing in 1981 when the late Robinson O.Everett, serving as chair of the SpecialCommittee on Interest on Trust Accounts,made a report to the council recommendingthe adoption of the IOLTA program inNorth Carolina. As Mr. Everett reported atthe time, other efforts of the legal professionto improve the administration of justicerequire a significant commitment on the partof lawyers—of their time, money, or both.Conversely, Mr. Everett emphasized the abil-ity, with the creation of IOLTA, to simplytake advantage of an innovative concept forthe benefit of the public and the administra-tion of justice in the state of North Carolina.

Mr. Everett may not have imagined thatthe profession would still today have theopportunity to generate funds in this way.Certainly recent economic conditions andthe low interest rate environment haveimpacted the IOLTA program in a way thatlikely was not anticipated in 1981. However,the core principle at the founding of theIOLTA program remains—to support pro-grams improving the administration of jus-tice for the public’s benefit.

Charlotte Center for Legal Advocacy, pre-viously known as Legal Services of SouthernPiedmont, is a long-time grantee of theIOLTA program. The organization openedits doors in 1967. Today, Charlotte Centerfor Legal Advocacy provides a wide range ofcivil legal assistance. Over the course of theorganization’s 50 year history, the programhas developed deep roots and partnershipswithin the community to respond to thechanging needs of low-income clients.Through individual advice and representa-tion, community education and outreach,representation of groups, self-help remedies,collaboration with other agencies, communi-

ty economic development, legislative andadministrative advocacy, and impact litiga-tion, Charlotte Center for Legal Advocacypursues justice for those in need.

Last year an attorney from CharlotteCenter for Legal Advocacy met Janessa. Afew years ago, Janessa, 21, found herselfhanging out with the wrong friends andmaking bad decisions that resulted in misde-meanor charges for larceny and drug posses-sion. These charges were ultimately dis-missed, but they remained on her criminalrecord. “I thought everything was finebecause they were dismissed,” Janessa says.She had no idea that these mistakes wouldfollow her into her adult life. It wasn’t untilshe started applying for jobs that she realizedshe had a criminal record.

She remembers interviewing for a localretail position and sailing through the threeinterviews necessary for the job. “I was theperfect candidate for that job, but then itcame down to them asking if I had any prob-lems with them running a backgroundcheck,” Janessa says. “I knew what they wouldfind, so I told them about the charges.” Shedidn’t get the job. Every time she filled out ajob application, the necessary backgroundcheck was her barrier—to employment, to astable income, to opportunity.

Last fall Janessa walked into the SingleStop office at Central Piedmont CommunityCollege where she had been taking courses inthe hopes of earning an associate’s degree toput her on a better path. A friend told herabout the legal assistance Charlotte Centerfor Legal Advocacy offers to students throughthe Single Stop program. She met with anattorney, and she was surprised to learn shewas eligible to have the dismissed chargesremoved from her record by applying for anexpunction.

With the help of her attorney, she appliedand waited six months for a decision from thestate. In April, a few weeks before graduation,

she got the answer that would ultimatelyopen the door to opportunity. Her applica-tion had been approved, and she no longerhad charges listed on her criminal record.“This was the only thing holding me back,”


I O L T A U P D A T E

IOLTA Grantee Helps Students Find Safety, Security,Stability, and Opportunity

IOLTA Update

• Income received in the first fivemonths of 2018 from participatingfinancial institutions increased by 18%compared to last year.

• NC IOLTA continues to work withbanks across the state to review all bankproducts and the rate and policies relat-ed to IOLTA accounts to ensure compli-ance with State Bar rules.

• The 2019 grant application willopen in early August.

• NC IOLTA continues to adminis-ter state funding for legal aid on behalfof the State Bar. In 2017-2018, NCIOLTA distributed $1,060,596 indomestic violence state funds and$100,000 for veterans’ legal services.

Janessa—Single Stop Expunction client

34 FALL 2018

The North Carolina Plan of LegalSpecialization requires the specializationboard to include three public members.Public members contribute fresh views of theprogram which helps the board to makegood decisions regarding how tobest protect the public. Publicmembers represent consumerinterests and also bring with themyears of experience in their profes-sions and have extraordinary per-sonal and career accomplishmentsunder their belts. One such per-son is Delores “Dee” Todd.

Dee has been a trailblazerthroughout her career. She hasconsistently risen above the barri-ers in her path, all the while making history.Growing up in Camden, New Jersey, Deealways loved sports, even when the commonnotion at that time was that girls didn’t playsports. The self-confessed tomboy wanted tobe a veterinarian until she found out shewould need to practice on large animals aswell as small. She never set out to take theacademic sports world by storm, but sheadmits that, “it fell in my lap and I wentwith it!”

Early in her career, Dee was a sought-aftermodel, including recognition as Chicago’stop African-American model for five consec-utive years. She modeled for well-knowncompanies such as Fashion Fair Cosmetics,Bell Telephone, Soft Sheen, Natalie ColeWigs, Kodak, and Dr. Scholl’s. Little did Deeknow that the modeling would change herlife significantly.

Dee was a track coach at ThornridgeHigh School in South Holland, Illinois,when the opportunity of a lifetime camealong. In 1980, when the United States boy-cotted the Olympics, Kellogg was in need ofa strong, influential person to grace its CornFlakes cereal box. The Kellogg company

went to Dee’s agent and inquired whetherDee would be willing to pose for the box.She gladly accepted and became the firstAfrican-American woman to be featured ona Kellogg’s cereal box.

Dee’s career as an intercolle-giate athletics executive allowedher to use her expertise at manyinfluential institutions and or-ganizations including North Car-olina A&T State University,Georgia Institute of Technology,Northwestern University, and theAtlantic Coast Conference(ACC).

Throughout her career, Deehas passionately fought for the

equality of women and minorities in sports.She became a strong advocate for theadvancement of women and minoritiesthrough her work with the Urban EducationInstitute, US Women’s Track CoachesAssociation, and as a life member of theDelta Sigma Theta Sorority. Dee made histo-ry when she was appointed in 1996 by USOlympic Committee president to head theUS Olympic Committee Minorities inSports Task Force, becoming the firstAfrican-American woman to hold the posi-tion. Dee currently coaches track at HeritageHigh School in Wake Forest.

Dee’s six-year term on the specializationboard ended in July of this year. I had theopportunity to talk with her about her careeraccomplishments, her service on the board,and what she’s doing when she’s not outchanging the world. Q: You just finished your term on the Boardof Legal Specialization. What will you missmost about service on the board?

I will miss learning about the variousprocesses that go into becoming a legal spe-cialist in the different specialty areas. I willmiss serving on the certification and recerti-

fication applicant appeals. I’ll miss saying“second” to motions. I will miss the board,committee members, and staff the most;they taught me a great deal about under-standing the specialization program. Q: From the perspective of a former boardmember, finish this sentence: “I’m excitedabout the future of legal specializationbecause...”

As a society, we are changing how we dobusiness in the world. As new areas of law areintroduced, and existing areas are more indemand, the need for specialists continues togrow. The board has been very proactive inidentifying the growth and the need to con-tinue adding new specialty areas and improv-ing the process for existing certifications andrecertifications. Q: Do you feel your career and personalaccomplishments prepared you for serviceon the board?

Most definitely! As a long-time assistantcommissioner for the ACC, my job was toorganize and direct championships in 23sports. Although the basics of each of thechampionships were the same regardingplanning and execution, each sport had dif-ferent elements, very in line with how thespecialization program works. Beinginvolved in the creation of specialty areas forjuvenile delinquency law, utilities law, trade-mark law, and privacy and information secu-rity law (the only such specialty in thenation) was as fulfilling an accomplishmentas when I started eight different champi-onships during my tenure at the ACC. Q: What do you think is the importance oflegal specialization to the public?

Legal specialization is important to con-sumers because it helps them to identifyqualified lawyers. I equate it with an inter-nal medicine doctor who has knowledge ofillnesses, but cannot treat specific illnessesthat need a specialist like for diabetes or

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

Delores Todd, Board of Legal SpecializationPublic MemberB Y L A N I C E H E I D B R I N K , E X E C U T I V E A S S I S T A N T O F L E G A L S P E C I A L I Z A T I O N

Todd


heart disease.Q: What’s something personal that mostpeople don’t know about you?

I love trivia and animals, and, when I’mnot working, I’m happiest watching TV

game shows. n

For more information on how to becomecertified, visit our website at nclawspecialists.gov.

Judicial Selection Process (cont.)

58. New Analysis: 2016 Judicial Elections See Secret Moneyand Heightened Outside Spending, Brennan Center for

Justice (Sept. 14, 2016), bit.ly/2cnievA.

59. Alex Kotch, NC Judicial Candidates Set to SpendRecord Sums to Get Elected, Facing South (Sept. 11,2014), bit.ly/2uDSnom.

60. Jeff Jeffrey, North Carolina No. 2 in Judicial ElectionSpending, Report Says, Triangle Business Journal (Oct.29, 2015, 2:38 PM), bit.ly/2L2h4FO.

61. Id.

62. Id.

63. Id.

64. State Board of Elections, 2018 Judicial Filing,bit.ly/2uFCuO7.

65. See Brian P. Troutman, Party Over? The Politics OfNorth Carolina's “Nonpartisan” Judicial Elections, 86N.C. L. Rev. 1762, 1767-68 (2008).

66. 2017 N.C. Sess. Laws 2017-214, § 4.(a).

67. Taft Wireback, Federal appeals court backs skippingjudicial primaries in North Carolina, News & Record(Apr. 3, 2018), bit.ly/2unCnHN.

68. State Board of Elections, ncsbe.gov.

69. Id.

70. Id.

71. Id.

72. Va. Const. Art. VI, § 7.

73. Va. Code Ann. § 17.1-100 (Lexis Advance throughthe 2017 Regular Session).

74. Deborah Elkins, Judges seek reassurance about JPEprogram, Virginia Lawyers Weekly, May 13, 2016.

75. Id.

76. Id.

77. SC Const. art. V, §§ 3, 8, 13.

78. How Judges are Elected in South Carolina, SouthCarolina State House (Jan. 11, 2010),bit.ly/2NkBxCv.

79. SC Supreme Court Elections—Quick and Quiet,South Carolina Policy Council (Feb. 3, 2017),bit.ly/2JsNvrj.

80. Id.

81. Jamie Self, SC Lawmakers Hear Calls to Change theWay SC Elects Judges, The State: The Buzz (Feb. 7,2015), bit.ly/2L2U2yQ.

82. SC Code Ann. § 2-19-10 (2017).

83. Id.

84. Id.

85. SC Const. art. V, § 27.

86. SC Code Ann. § 2-19-35 (2017).

87. Methods of Judicial Election: South Carolina,

National Center for State Courts (last visited July 13,2017), bit.ly/2KXHTLm.

88. Id.

89. How Judges are Elected in South Carolina, supra.

90. South Carolina Judicial Department, sccourts.org(last visited July 19, 2017).

91. Phillip Cease, My Last Nerve: Lawmakers and JudgesGet Awfully Cozy, The Nerve (Nov. 18, 2006),bit.ly/2LnutVk.

92. Methods of Judicial Election: South Carolina, supra.

93. Id.

94. US Const. Art. II, § 2.

95. US Const. Art. III.

96. John Tunney, The Judicial Appointment Process, 34Pepp. L. Rev. ISS. 2 (2007).

97. Id.

98. Id.

99. Russell Wheeler, Judicial Nominations andConfirmations: Fact and Fiction, Brookings: Fix Gov(Dec. 30, 2013), brook.gs/2LftucQ.

100. Id.

101. Tunney, supra note 83, at 277.

102. Id.

103. Id.

104. Id.

105. Russell Wheeler, supra.

106. Id.

107. Id.

108. Id.

109. Id.

110. Id.

111. Judicial Emergencies, United States Courts,bit.ly/2DTz2Tw (last visited June 7, 2018).

112. Id.

113. Id.

114. Russell Wheeler, Senate Obstructionism Handed aRaft of Judicial Vacancies to Trump—What Has HeDone With Them?, Brookings Institution (June 4,2018, brook.gs/2ml9rMb).

115. Lawrence Hurley, Trump Push for ConservativeJudges Intensifies, to Democrats’ Dismay, Reuters (May7, 2018, reut.rs/2wltRMT).

116. John Gramlich, Federal Judicial Picks Have BecomeMore Contentious, and Trump’s Are No Exception, PewResearch Center (Mar. 7, 2018,pewrsr.ch/2JtuWU3).

117. Barry J. McMillion, Cong. Research Serv.,R45189, US Circuit and District Court Nominationsduring President Trump’s First Year in Office:Comparative Analysis with Recent Presidents 16 (2018).

118. High Point University Survey Research Center,Majority of North Carolinians Want to ContinueElecting Judges (May 18, 2018), bit.ly/2mp8h2a.

36 FALL 2018

The Ethics Committee recently received aninquiry regarding the ethical implications of alawyer receiving cryptocurrency (Bitcoin) as pay-ment for legal fees or as payment for the benefitof a client or a third party. The inquiry wasreferred to a subcommittee for further review.Nebraska is currently the only jurisdiction thathas issued an opinion on the ethical issues impli-cated by the multifaceted nature of cryptocurren-cy. The Virginia State Bar recently published anarticle referencing the Nebraska opinion andnoting their concerns about the implications ofcryptocurrency on a lawyer’s professional respon-sibility. With permission from the authors andthe Virginia State Bar, that article is republishedhere for our members’ contemplation.

Cryptocurrency BaselineBitcoins are digital currency, and yes,

lawyers are beginning to accept them fromclients. They are also known as virtual curren-cy or cryptocurrency since cryptography isused to control Bitcoin creation and transfer.They use peer-to-peer technology with nocentral authority or banks. The issuance ofbitcoins and the managing of transactions arecarried out collectively by the network.

Cryptocurrencies are created by a processcalled mining—by becoming a miner ofcryptocurrencies, you make money (notmuch unless you are a major league miner).We won’t go into all of the technology that isused to create and verify the transactions sinceit will probably make your head hurt. Miningis accomplished by executing complicatedmathematic operations that take a lot of pro-cessing power. Hence the new phenomenonof cryptojacking in which miners hijack thecomputing resources of unknowing victimsso they can mine cryptocurrencies. And yes,your network could be victimized and there islittle chance you would know unless so muchpower is used that your network slows down.

Today there are a lot of different cryp-

tocurrencies. Bitcoin is still one of the mostwell-known and popular. However, othercryptocurrencies such as Ethereum, BitcoinCash, Monero, Litecoin, Ripple, Dash, andothers are gaining in popularity. They prom-ise to scale better than Bitcoin and to providestronger anonymous protections. As of April26, 2018, the amazing number of differentcryptocurrencies is 1,759 according toinvesting.com’s current list located athttps://www.investing.com/crypto/curren-cies. With all the various “flavors” of digitalcurrencies, we’re sure you’ll find one to yourliking.

All cryptocurrency transactions are record-ed in a computer file called a blockchain,which is synonymous to a ledger that dealswith conventional money. Users send andreceive Bitcoin and other cryptocurrenciesfrom their mobile device, computer, or webapplication by using wallet software. You caneven use cloud services to host and manageyour wallet(s). Frankly, we prefer to havedirect control and keep our wallet(s) storedon local devices. Of course, don’t forget toback up your wallet(s).

We won’t get into all the technical andlegal issues surrounding cryptocurrencies.Suffice it to say that these virtual currenciesare here to stay and have value, although theyremain extremely volatile. In the US, cryp-tocurrencies are regarded as property ratherthan cash, with all the consequent tax impli-cations.

Ethical IssuesLet’s deal with some of the ethical issues

concerning the acceptance of cryptocurren-cies.

Nebraska is the only state we are aware ofthat has issued an ethical opinion specificallyfor Bitcoin usage. Nebraska’s opinion statesthat lawyers may accept payments in digitalcurrencies, but must immediately convert

them into US dollars. Any refund of moniesis also made in US dollars and not in digitalcurrency.

It is well known that an attorney can’taccess client funds until they are earned,hence the existence of trust accounts. Also, anattorney can accept property as payment, butthere must be a valuation for the property.This is where accepting digital currenciescould get a little muddy. The Virginia rulesrequire that a fee for legal services must be“reasonable.” If attorneys receive digital cur-rency, they should immediately convert andexchange it to actual currency AND put it intheir escrow account. This effectively (andactually) puts a value on the cryptocurrency,which is exactly the process described in theNebraska opinion. As part of the reconcilia-tion and billing process, the lawyer would justnote wording stating the number of bitcoinsor other cryptocurrency and the market valueat conversion. What the Nebraska opiniondid not address is the handling of transactionfees, which can be rather substantial. Themajority of lawyers will use an exchange toconvert the cryptocurrency into cash. Whopays the fee for this conversion? And what ifthe client insists that the lawyer hold anadvanced fee payment in Bitcoin instead ofconverting it to US currency? If Bitcoinincreases in value, who gets the windfall—thelawyer or the client? Who bears the risk ifBitcoin drops in value?

Criminal defense lawyers, of course, canface potential ethical and even criminal issuesif clients pay them with assets they are deter-mined to have acquired through illegal con-duct. And yet, almost invariably, when wehear about lawyers accepting Bitcoin as pay-ment, the lawyers involved are criminaldefense attorneys. For all the talk of “privacy”and the frequent inability to prove the con-nection between illegal conduct and Bitcoin,it is clear that federal authorities believe the

Is It Ethical for Lawyers to Accept Bitcoins andOther Cryptocurrencies?B Y J A M E S M . M C C A U L E Y , S H A R O N D . N E L S O N , A N D J O H N W . S I M E K

L E G A L E T H I C S

bitcoins are used to keep criminal activitiesfinancially untraceable. On the other hand,many legitimate businesses in the UnitedStates and Europe accept Bitcoin, includingDish Network, Overstock.com, and Expedia.

Holding CryptocurrenciesWhat if the lawyer wants to keep the cryp-

tocurrency for their own use? Can they justkeep the cryptocurrency in their own elec-tronic wallet and deposit cash in the trustaccount on behalf of their client? The answerto this question depends on whether the Barconsiders bitcoins “funds” or “property” thata client entrusts to the lawyer. See Rule 1.15.Client “funds” belong in a trust account, butclient “property” must be kept safe by thelawyer. Since a lawyer cannot deposit bitcoinsin a trust account, describing it as “funds” is aproblem.

When a client gives a lawyer bitcoins, it is“property,” not actual currency, but Rule 1.15requires a lawyer to safeguard client property.This means making sure your digital “wallet”is secure and backed up. If the lawyer wantsto keep the bitcoins and give the client theequivalent value in cash, those funds must gointo the trust account if the bitcoins werepayment of an advanced fee. This wouldrequire the client’s consent and would be sub-ject to the business transaction rule underRule 1.8(a), requiring that the terms of thetransaction be fair and reasonable, confirmedin writing, and that the client be advised toseek independent counsel before enteringinto the agreement.

One legal ethicist, the late ProfessorRonald D. Rotunda, disagreed with theNebraska Bar’s Ethics Opinion 17-03 thatsays the lawyer must convert the cryptocur-rency immediately into US currency. See,Bitcoin and the Legal Ethics of Lawyers, datedNovember 6, 2017, on Justia’s Verdict blog atbit.ly/2OzOFoT. Professor Rotunda correctlyexplains how Bar opinions have allowed that,subject to certain requirements, lawyers mayaccept from their clients’ stock and tangibleproperty in lieu of cash for payment of legalfees even if the stock or property might fluc-tuate in value after the lawyer has accepted it.In Rotunda’s view, bitcoins are like gold in thesense that it is worth whatever people are will-ing to pay for them.

The Nebraska opinion requires thatlawyers “mitigate the risk of volatility andpossible unconscionable overpayment forservices” by not retaining the digital currency

and by converting it “into US dollars imme-diately upon receipt.” To Rotunda, it is abusiness decision rather than an ethics deci-sion if the client wants to shift the risk ofvolatility to the lawyer. If a client and lawyeragree to pay the lawyer with stock in lieu ofcurrency, and the original value is reasonableat the time the parties contracted, the factthat the stock goes up or down in value doesnot make the acceptance of the stock unethi-cal. The Bar opinions “look back” to the timethat payment was accepted to determinewhether the payment was “reasonable,” andthe lawyer may suffer a loss or a windfall, asthe case may be. These opinions do notrequire that the lawyer sell the stock immedi-ately to convert it to cash. In some initial pub-lic offerings, there may be “blackout periods”in which the lawyer is prohibited from sellingthe stock. That Bitcoin might drastically dropin value, resulting in the lawyer being under-paid, is not an ethics issue either, according toRotunda. Lawyers are educated adults andcan make the call to sell or keep the bitcoinsand accept that risk.

Rotunda may have a point if the clientpays the lawyer in bitcoins for past legal serv-ices. In that case, the lawyer has earned the feeand the bitcoins becomes the property of thelawyer. The lawyer can accept risk withrespect to his or her own property. That thebitcoins cannot be deposited into a bankaccount is not an ethics issue if the bitcoinsare payment toward an earned fee. Even if theclient paid the fee in cash, a lawyer cannotdeposit an earned fee in a trust accountbecause that would be commingling. Theethics rules do not require the lawyer todeposit an earned fee in an operating accounteither. The lawyer could deposit the cashdirectly into a personal checking account.

If the client gives the lawyer bitcoins as an“advance fee,” however, there are some prob-lems. Rule 1.15 requires that a lawyer safekeep property that the client has entrusted tothe lawyer. An “advanced fee” is property ofthe client until the lawyer has earned it, perLegal Ethics Opinion 1606. If Bitcoin plum-mets dramatically in value, and the client dis-charges the lawyer before the work is com-pleted, the lawyer will not have kept safe suf-ficient funds or property to make a refund ofthe unearned fee as required by Rule 1.16(d);or, if the lawyer accepts Bitcoin in settlementof a client’s claim, and Bitcoin loses value, thelawyer is unable to pay the client or to dis-charge third-party liens as required by Rule

1.15(b). The lawyer may discharge these obli-gations with other funds or property, but indoing so the lawyer would be making pay-ments “out of trust” and not in compliancewith the rules.

Another problem arises out of the fact thatthe Bar’s regulation of trust accounts andrecordkeeping has not kept pace with tech-nology and does not contemplate cryptocur-rency. Lawyers are required to keep records oftrust account transactions that are auditableand verified through an approved financialinstitution’s records and statements. No regu-latory Bar is currently equipped to auditBitcoin transactions and storage.

The FutureUnless some serious security measures are

built into Bitcoin, we wouldn’t recommendthat you invest any serious wealth with thevirtual currency. Certainly some virtual cur-rencies are better protected than others, butyou still might want to think long and hardabout accepting Bitcoin or other cryptocur-rency as lawyers. The bulk of people we knowregard Bitcoin as “shady money,” and theymay well regard lawyers accepting Bitcoin as“shady lawyers.” Will Bitcoin be legitimizedone day in the eyes of average Joes and Janes?Maybe—but not soon. n

Jim McCauley is the ethics counsel for theVirginia State Bar where he has been employedfor almost 29 years, and teaches professionalresponsibility at the T.C. Williams School of Lawin Richmond, Virginia. Sharon Nelson is thepresident and John Simek is the vice-president ofSensei Enterprises, Inc., a legal technology, cyber-security, and digital forensics firm based inFairfax, Virginia. (703) 359-0700,senseient.com.


IOLTA Update (cont.)

she says. “Now I have more opportunities. Ihave a clean slate.”

After graduation, Janessa hopes to contin-ue her education at UNC-Charlotte studyingbusiness and human resources. After years oftrying to put her mistakes in the past,Charlotte Center for Legal Advocacy helpedJanessa find a fresh start as she heads out intothe world with her degree in hand and adetermination to succeed. n

38 FALL 2018

The Lawyer Assistance Program holds sup-port groups across the state for lawyers who areactively engaged in a recovery process (recoveryfrom all kinds of issues, not just drug or alcoholproblems). Often these meetings are topic driven,providing lawyers an opportunity to uncover,examine, explore, and share their attitudes,thoughts, beliefs, and experiences on the giventopic. It is always so interesting to hear howthinking, reactions, self-understanding, and self-mastery have evolved as these lawyers practiceputting new recovery-based tools to use. The LAPsometimes sends out an article in advance of ameeting (our “Monday Article”), allowing thegroup participants an opportunity to reflect onthe topic for that week before they meet to discussit. We decided to publish this Monday Articlebecause we received so much positive feedback onit, as it resonated with many of our clients andvolunteers.

Actor Patrick Warburton, who bears astriking resemblance to Clark Kent/Superman, (in the neurotic world of Seinfeldhe was the only mechanic that could maintainJerry's Saab), is the latest spokesperson forNational Car Rental. He swaggers throughthe airport saying that some folks refer to himas a control freak, but he prefers to think ofhimself as a “Control Enthusiast.” He ishappy to be able to go straight to his car, andnot to have to talk to any humans unless hewants to—and he doesn’t want to.

National Car Rental is highlighting its“commitment to providing time-sensitive fre-quent airport travelers with unmatched con-trol throughout their rental experience”because people want to “be in charge at alltimes.” In our world that moves faster thanever, the ideal of control is difficult to resist.

Controlling people have extremely highexpectations, rigid routines and schedules,and their obsessive behaviors can border onbeing pathological. They have to plot andplan everything. They expend a tremendousamount of energy trying to plan, predict, andprevent things that they cannot possibly plan,

predict, or prevent.This controlling behavior is likely innate,

from an evolutionary standpoint—if we arein control of our environment we have a bet-ter chance of survival. Research has shownthat most people believe they have controlover certain aspects of or events in their lives,even when such control is impossible ordoesn’t exist. One of the best examples is thatno matter how bad a driver someone may be,most people firmly believe they are less likelyto be in a car accident if they are the onedriving.

Controlling behavior is really about tryingto manage fear and anxiety. Our emotions arefueled by insecurities and an absolute terror ofbeing vulnerable. We cannot risk having anyflaws or weaknesses exposed, whether real orimagined. We are attached to a specific out-come. We believe we can protect ourselves bystaying in control of every aspect of our livesand creating a rigid sense of order. “The ironyis that often those that feel the most need forcontrol, are themselves the ones being con-trolled by their own fears, insecurities, anddoubts,” says Carlos Felfoldi.

At our core, the “control enthusiast” in usbelieves we can never let our guard down orrelax our vigilance. Our insecurities and fearkeep us from trusting others, both on a prac-tical and emotional level. The downside ofthat is, if we have no trust in others on anemotional level, we can’t open up and we con-tinually keep people at arm’s length. Life isalways a struggle and a fight, and our livesbecome very restricted, very draining, andoften very lonely.

We emotionally walk on eggshells as westruggle to deal with the substantial anxietythat accompanies this outlook. Seeking con-trol becomes an anxiety management tool uti-lized to try and ward off feelings of helpless-ness and inadequacy. It isn’t necessarily a veryeffective tool, but it becomes our “go to” justthe same, especially if we are subject toincreasing stress.

We can move through the world in this

way as a result of growing up in a chaotic, dys-functional, and/or abusive environment. Webecome hypervigilant, always on high alert,always anticipating bad things. We developthe belief that there must be something wrongwith us. That translates into very low self-worth.

As adults, this can create a lack of trust inothers and ourselves, fear of abandonment,fear of failure, perfectionism, and the fear ofexperiencing painful emotions—or any emo-tions for that matter. It becomes a cycle—asthese feelings increase, so does a need for thesense of control. We establish a pattern ofcontrolling behavior and our world oftenrewards and reinforces these behaviors. Wekeep things consistent, complete tasks, andtake care of things. We try to control ourinternal world (feelings) by controlling ourexternal world.

We have specific emotional reactionswhen there is a perceived threat to our senseof control. As Dan Oestreich says, “Thesereactions are an effort to get things back incontrol as quickly as possible. I react withanger in order to restore the sense of safetyand stability my control brings. I hold agrudge in order to avoid the unknown risks oftrusting you again. I turn my back on you inorder to regain the relationship the way it was


The Control EnthusiastB Y C A T H Y K I L L I A N

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


Council ActionsAt its meeting on July 27, 2018, the State

Bar Council adopted the ethics opinionssummarized below:

2018 Formal Ethics Opinion 1Participation in Website Directories and

Rating Systems that include Third PartyReviews

Opinion explains when a lawyer may par-ticipate in an online rating system and alawyer’s professional responsibility for thecontent posted on a profile on a websitedirectory. The State Bar Council adopted2018 FEO 1 after the Ethics Committeemade non-substantive revisions to Opinion#6 at its meeting on July 26, 2018.

2018 Formal Ethics Opinion 2Duty to Disclose Adverse Legal AuthorityOpinion rules that a lawyer has a duty to

disclose to a tribunal adverse legal authoritythat is controlling as to that tribunal if thelegal authority is known to the lawyer and isnot disclosed by opposing counsel.

2018 Formal Ethics Opinion 3Use of Suspended Lawyer’s Name in Law

Firm NameOpinion rules that the name of a lawyer

who is under an active suspension must beremoved from the firm name within a reason-able period of time.

2018 Formal Ethics Opinion 6Shifting Cost of Litigation Cost Protection

Insurance to ClientOpinion rules that, with certain condi-

tions, a lawyer may include in a client’s feeagreement a provision allowing the lawyer’spurchase of litigation cost protection insuranceand requiring reimbursement of the insurancepremium from the client’s funds in the event ofa settlement or favorable trial verdict.

Ethics Committee ActionsAt its meeting on July 26, 2018, the

Ethics Committee withdrew proposed 2017Formal Ethics Opinion 6, Participation inPlatform for Finding and Employing aLawyer, due to the discontinuation of theonline service at issue in the inquiry. Thecommittee sent Proposed 2018 FormalEthics Opinion 5, Ex Parte Communicationswith a Judge Regarding Scheduling orAdministrative Matter, back to subcommit-tee for further study based upon commentsreceived about the proposed opinion duringthe prior quarter. The committee alsoreceived an inquiry concerning Bitcoin andother cryptocurrency and sent the inquiry tosubcommittee for study. The committeeapproved two new opinions for publication,which appear below.

Proposed 2018 Formal Ethics Opinion 7 Online Review Solicitation ServiceJuly 26, 2018

Proposed opinion rules that, subject to cer-tain conditions, a lawyer may participate in anonline service for soliciting client reviews thatcollects and posts positive reviews to increase thelawyer’s ranking on internet search engines.

Repsight.com is an online service thatoffers to help lawyers accumulate more posi-tive client reviews. Repsight contends thatpositive client reviews give law firms addedcredibility with potential customers and helpincrease search rankings in Google searches.For a monthly fee, Repsight will contact aclient via text or email to solicit a review fromthe client. The number of contacts made byRepsight is based on the amount of themonthly fee.

After completing legal services for a client,the lawyer will log in to Repsight.com andenter the client’s email address or phonenumber and presses the “send” button.Repsight then sends the client a text or an

email thanking the client for the client’s busi-ness and asks the client to click a button torate the lawyer’s services. The client thenchooses between 1 and 5 stars, with 5 starsbeing the highest rating. If the client rates thelawyer 3 stars or less, Repsight redirects theclient to a private feedback form. The lawyerwill receive the client’s comments, but thecomments will not be posted on the lawyer’sGoogle review page. If the client gives thelawyer a 4- or 5-star review, the client is redi-rected to the lawyer’s Google review page(with 5 stars already populated) so that theclient can leave the lawyer a positive review.

Inquiry #1:May a lawyer participate in the Repsight

service?

Opinion #1:Yes, if certain conditions are met. A client’s name and contact information

are confidential and may not be revealedunless the client gives informed consent.Rule 1.6(a). Before the lawyer may provide aclient’s contact information to Repsight, thelawyer must obtain the client’s informed

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

Committee Publishes Proposed Opinions on Using anOnline Review Solicitation Service and on Membershipin a Marketing Company with a Misleading Title

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.

40 FALL 2018

consent. “Informed consent” denotes theagreement by a person to a proposed courseof conduct after the lawyer has communicat-ed adequate information and explanationappropriate to the circumstances. Rule1.0(f).

To obtain the client’s informed consentand to avoid misrepresentation, the lawyermust explain to the client that the lawyer usesRepsight. The lawyer is also obligated to dis-close Repsight’s process, to wit: the lawyerpays a monthly fee for Repsight services; thelawyer will provide the client’s name and con-tact information to Repsight after the repre-sentation has concluded; Repsight will contactthe client regarding the review; only 4- and 5-star reviews will be posted on Google andother internet search engines; and 3 stars orless reviews will be shared with the lawyer, butwill not be posted by Repsight or the lawyeranywhere on the internet. See Rule 1.4; Rule8.4(c).

Inquiry #2:If a lawyer obtains the client’s informed

consent to provide the client’s contact infor-mation to Repsight, must the lawyer post ordirect Repsight to post all reviews, includingreviews of 3 stars or less?

Opinion #2:No, provided the lawyer does not deceive

the client about the treatment of negativereviews and adequately explains that reviewsof 3 stars or less will not be posted on theinternet. See Rule 8.4(c).

Inquiry #3:When a client gives a lawyer a negative

review, the lawyer may contact the client toaddress the client’s concerns. If after the com-munication the client agrees to change thenegative review and provide a 4- or 5-starreview, may the lawyer direct Repsight tocontact the client to obtain and post therevised review?

Opinion #3:Yes, subject to certain conditions. There

can be no quid pro quo for the revised review.See Rule 7.2(b). Also, the lawyer may notsolicit, encourage, or assist in the posting offake, false, or misleading reviews. See Rule8.4(c). Finally, the lawyer may not threaten,bully, or harass the client to provide a positive4- or 5-star review. See Rule 8.4, cmt. [5]. Seegenerally 2018 FEO 1.

Proposed 2018 Formal Ethics Opinion 8Advertising Membership in MarketingCompany with Misleading TitleJuly 26, 2018

Proposed opinion rules that a lawyer maynot advertise membership in an organizationthat designates members as “lawyers of distinc-tion” if the organization does not have verifiablestandards for admission.

“Lawyers of Distinction” describes itself asa private lawyer vanity and marketing compa-ny. A “Benefits of Membership” video on themarketing company’s website states that“Lawyers of Distinction” is “a private organi-zation that acknowledges lawyers in theUnited States who have demonstrated excel-lence in the practice of law.” Advertisingmaterial for the company states that “mem-bership is limited to the top 10% of attorneysin the United States.” Nominees are selectedthrough peer nomination, selection commit-tee research, or self-nomination. Lawyers donot pay for the nomination.

Upon approval of his or her nomination,the lawyer may “accept” membership by pay-ing a membership fee of $475 to $775 peryear. With a payment of $475, the lawyerreceives a customized rosewood plaque. Withthe payment of $775, the lawyer receives apersonalized crystal statue. The plaques andstatues display the “Lawyers of Distinction”logo, the year, the lawyer’s name, and thestatement “Recognizing Excellence in [area oflaw].” The member has the opportunity topurchase additional rosewood plaques at thecost of $100 per plaque or $175 per crystalstatue. Either membership option entitles thelawyer to display the “Lawyers of Distinction”licensed logo on the lawyer’s website andother promotional materials for the year. Inaddition, all members are included in the“Lawyers of Distinction” directory, and thecompany publicizes member names year-round through press releases and onlineannouncements.

Pursuant to the company’s website:Lawyers of Distinction members havebeen selected based upon a review and vet-ting process from our SelectionCommittee. Nomination does not guar-antee membership. All prospective mem-bers are subject to final review after sub-mitting their application before confirma-tion of membership. Lawyers do not payfor this nomination. These potential can-

didates who meet the criteria of ourscreening process have demonstrated ahigh degree of peer recognition and pro-fessional competence. Attorneys maynominate other peers they feel warrantrecognition or self-nominate. These can-didates undergo the same rigorous reviewprocess. Lawyers of Distinction uses itsown independent criteria, including bothobjective and subjective factors, in deter-mining if an attorney can be recognized asa Lawyer of Distinction in the UnitedStates in their respective field. This desig-nation is based upon the proprietaryanalysis of the Lawyers of Distinctionorganization alone and is not intended tobe endorsed by any of the 50 UnitedStates Bar Associations or The District ofColumbia Bar Association. Lawyers ofDistinction shall not confirm member-ship to more than 10% of attorneys in anygiven state. Any references to “excellent,”“excellence,” or “distinguished” are meantto refer to the Lawyers of Distinctionorganization and not to any named mem-ber individually. A “selection process” video on the compa-

ny website states: “Lawyers cannot simply payto join. Members are selected through peernomination, selection committee research, orself-nomination.” In order to self-nominate, alawyer need only enter his name, address, lawfirm website, email, and area of practice intoan online membership application. Thelawyer/applicant then immediately choosesand pays for a particular membership. Theapplication form provides that in the eventthe Membership Committee rejects an appli-cation for any reason, the application fee willbe refunded in full. The application form alsostates that, once a lawyer’s application hasbeen approved for a yearly membership, themember may continue to be a member with-out the need for a nomination in successiveyears. The membership is renewed annuallyunless the lawyer notifies Lawyers ofDistinction of non-renewal. There are noqualification requirements for annual mem-bership renewal.

Inquiry #1:May North Carolina lawyers advertise

their membership in “Lawyers ofDistinction”?

Opinion #1:No. Rule 7.1(a) prohibits a lawyer from


making false or misleading communicationsabout himself or his services. A communica-tion is misleading if it creates unjustifiedexpectations about the results a lawyer canachieve or makes a comparison with the serv-ices of another lawyer that cannot be factuallysubstantiated. See Rule 7.1(a)(2) and (3).

In 2007 FEO 14, the Ethics Committeeconsidered the permissibility of lawyers adver-tising inclusion in lists with titles that implythat the named lawyers are “super,” “the best,”“elite,” or a similar designation. The EthicsCommittee concluded that an advertisementstating that a lawyer is included in a listing ina publication (such as North Carolina SuperLawyers) is not misleading or deceptive pro-vided the relevant conditions from 2003FEO 3 are satisfied. 2003 FEO 3 states that alawyer may only advertise membership orparticipation in an organization with a self-laudatory name or designation (such as theMillion Dollar Advocates Forum) if the fol-lowing conditions are satisfied:

(1) the organization has strict, objectivestandards for admission that are verifiableand would be recognized by a reasonablelawyer as establishing a legitimate basis fordetermining whether the lawyer has theknowledge, skill, experience, or expertiseindicated by the designated membership;(2) the standards for membership areexplained in the advertisement or infor-mation on how to obtain the membershipstandards is provided in the advertise-ment;(3) the organization has no financial inter-est in promoting the particular lawyer;and (4) the organization charges the lawyeronly reasonable membership fees.The Ethics Committee cannot identify

any verifiable strict, objective standards foradmission to Lawyers of Distinction in effectthat would be recognized by a reasonablelawyer as establishing a legitimate basis fordetermining whether the lawyer has theknowledge, skill, experience, or expertiseindicated by the designated membership.The company website includes a “selectionprocess” page that appears to state objectivestandards for admission; these “indicators ofprofessional achievement” purportedly inde-pendently investigated by the companyinclude: experience, honors/awards, caseresults, specialty certifications, professionalactivities, educational background, pro bonoand community service, scholarly lectures,

and other outstanding achievement.However, it is unclear how the companyselection committee can consider these fac-tors based on the limited information pro-vided by a self-applicant. Similarly, the selec-tion process also purports to include anethics review and background check.However, it is unclear how consent would beobtained from a peer nominated or selectioncommittee nominated lawyer. In the case ofself-applicants, the application process doesnot request consent from the applicant toeither of these confidential inquiries.Accordingly, the Ethics Committee cannotconclude that “Lawyers of Distinction” satis-fies the standards set out in 2003 FEO 3 and2007 FEO 14. Therefore, advertising mem-bership in “Lawyers of Distinction” is mis-leading and a violation of Rule 7.1.

Inquiry #2:May North Carolina lawyers become

members of the “Lawyers of Distinction”marketing company if they do not personallyadvertise their membership?

Opinion #2:No. Advertising materials for the compa-

ny state that it publicizes member namesyear-round through press releases and onlineannouncements in The New York Times, USAToday, Fox News, CNN, Huffington Post,and on social media, including Facebook andTwitter. The advertising material also statesthat membership rosters are advertisednationally in print through the New YorkTimes, Bar journals, The National BarJournal, Trial Magazine, and numerous otheroutlets. Therefore, even if a lawyer does notadvertise the membership in his or her ownpromotional materials, the lawyer will appearon membership rosters published by thecompany that identify the lawyer as a“Lawyer of Distinction,” which is misleadingas set out in Opinion #1. Furthermore, thecompany’s disclosure statement that “designa-tion is based upon the proprietary analysis ofthe Lawyers of Distinction organization aloneand is not intended to be endorsed by any ofthe 50 United States Bar Associations or TheDistrict of Columbia Bar Association” andthat “[a]ny references to ‘excellent,’ ‘excel-lence,’ or ‘distinguished’ are meant to refer tothe Lawyers of Distinction organization andnot to any named member individually” isinsufficient to correct the misleading natureof the company’s publication of a member-

ship roster identifying the lawyer as a“Distinguished Attorney.”

The company’s advertising materials con-tain other misrepresentations. The companystates that it “shall not confirm membershipto more than 10% of attorneys in any givenstate.” Based upon the company’s promise tocut off membership once membership reach-es 10% of the lawyers in a particular state,publications of the membership roster, as wellas press releases prepared by the company,misleadingly state that the members representthe “top 10% of lawyers in the UnitedStates.”

Because the company’s advertisingmaterials are misleading, a North Caolinalawyer may not participate in the compa-ny’s marketing. n

CJCP (cont.)fullest and to apply that responsibly tothe problems at hand. Professionalismrequires adherence to the highest ethicalstandards of conduct and a willingness tosubordinate narrow self-interest in pur-suit of the more fundamental goal ofpublic service. Because of the tremen-dous power they wield in our system,lawyers must never forget that their dutyto serve their clients fairly and skillfullytakes priority over the personal accumu-lation of wealth. At the same time,lawyers must temper bold advocacy fortheir clients with a sense of responsibilityto the larger legal system which strives,however imperfectly, to provide justicefor all.”3

Lisa Sheppard is the executive director of theChief Justice’s Commission on Professionalism.

Endnotes1. Message from the President, North Carolina State Bar

Magazine, Vol. 20, No. 4, pp. 6-7 (1973).

2. The CJCP welcomes new ideas for projects and initia-tives that enhance professionalism among NC lawyers,judges, and law students, as well as feedback on itsexisting programming. Please contact Lisa Sheppard,executive director, at [email protected] toshare your thoughts.

3. Justice Sandra Day O’Connor, Court of Appeals ofMaryland Professionalism Course, “ProfessionalismAbove and Beyond Ethics,” p. 15 (1992).

42 FALL 2018

At its meetings on April 20, 2018, andJuly 27, 2018, the North Carolina State BarCouncil voted to adopt the following ruleamendments for transmission to the NorthCarolina Supreme Court for approval. (Forthe complete text of the proposed ruleamendments, see the Spring and Summer2018 editions of the Journal or visit the StateBar website.)

Proposed Amendments to the Ruleson Election, Succession, and Dutiesof Officers

27 N.C.A.C. 1A, Section .0400,Organization of the North Carolina StateBar

A new rule is proposed that will specifywhat occurs when any of the State Bar’s offi-cers become temporarily unable to performthe duties of office. The replacement of theexisting, less comprehensive rule is pro-posed.

Proposed Amendments to the StateBar Council’s RulemakingProcedures

27 N.C.A.C. 1A, Section .1400,Rulemaking Procedures

Proposed amendments to Rule .1401allow future proposed amendments to bepublished for comment in a digital versionof the Journal, the State Bar’s official publi-cation. The proposed amendments are nec-essary to accommodate those members whoelect to receive the electronic version of theJournal exclusively. Proposed amendmentsto Rule .1403 specify when a proposed ruleamendment or proposed rule takes effect.

Proposed Amendments to theRequirements for Reinstatementfrom Inactive Status andAdministrative Suspension

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

The proposed amendments require alawyer petitioning for reinstatement to com-plete the mandatory CLE hours for the year

in which the lawyer went inactive or wasadministratively suspended if inactive orsuspended status was ordered on or afterJuly 1.

Proposed Amendments to theAnnual CLE Requirements

27 N.C.A.C. 1D, Section .1500, RulesGoverning the Administration of theContinuing Legal Education Program; andSection .1600, Regulations Governing theAdministration of the Continuing LegalEducation Program

The proposed amendments provide adefinition of “technology training” andmandate that one of the 12 hours ofapproved CLE required annually must bedevoted to technology training.

Proposed Amendments to the RulesGoverning the Administration of theContinuing Legal Education Program

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

Proposed amendments to Rule .1522specify that members may file their annualreport forms online and allow the State Barto email notice to the membership that theforms have been posted to members’ onlinerecords in lieu of mailing the forms.

Proposed Amendments to theCertification Standards for the ElderLaw Specialty

27 N.C.A.C. 1D, Section .2900,Certification Standards for the Elder LawSpecialty

The proposed amendments clarify whatconstitutes elder law CLE for the purpose ofsatisfying the CLE standards for certificationand for continued certification in elder law.

Proposed Amendments to Rules forthe Paralegal Certification Program

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

Proposed amendments to The Plan for

Certification of Paralegals allow an addition-al one-year term for service as the chair ofthe certification committee and establish avice chair position for the committee. Otherproposed amendments eliminate the rightsof an applicant to review a failed examina-tion and to request a review by the board ofa failed examination.

Proposed Amendments to the RulesGoverning the Admission to thePractice of Law in North Carolina

NC Board of Law Examiners, Section.0500, Requirements for Applicants; Section.0600, Moral Character and GeneralFitness; and Section .1200, Board Hearings

Proposed amendments to the rules of theBoard of Law Examiners provide a timeperiod within which a general applicant isrequired to successfully complete the state-specific component of the Uniform BarExamination, and require transfer applicantsas well as general applicants to appear beforebar candidate committees.

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

Highlights· Council approves for transmission toNC Supreme Court rule amendmentsmandating that one of the 12 hours ofapproved CLE required annually mustbe devoted to technology training. · Council publishes a proposed ruleestablishing a procedure to suspend thelicense of a lawyer who is not in compli-ance with requests of the GrievanceCommittee for information or evidencerelating to a grievance investigation. · Council republishes proposed amend-ments to Rule of Professional Conduct5.4 expanding the exceptions to theprohibition on fee sharing with non-lawyers.

Amendments Pending Supreme Court Approval


Proposed Amendments

At its meeting on July 27, 2018, thecouncil voted to publish the following pro-posed amendments to the governing rulesof the State Bar for comment from the mem-bers of the Bar:

Proposed Amendments to the Ruleson Discipline and Disability of Attor-neys

27 N.C.A.C. 1B, Section .0100, Disci-pline and Disability of Attorneys

Proposed amendments to Rule .0113 es-tablish a procedure for imposition of censuresthat is consistent with the procedures forimposition of reprimands and admonitions.Proposed new Rule .0135 establishes a pro-cedure to suspend the license of a licenseewho is not in compliance with demands ofthe Grievance Committee for informationor evidence relating to a grievance investiga-tion.

Rule .0113, Proceedings before theGrievance Committee

(a) Probable Cause - The GrievanceCommittee or any of its panels acting as theGrievance Committee with respect to griev-ances referred to it by the chairperson of theGrievance Committee will determinewhether there is probable cause to believethat a respondent is guilty of misconductjustifying disciplinary action. In its discre-tion, the Grievance Committee or a panelthereof may find probable cause regardlessof whether the respondent has been servedwith a written letter of notice. The respon-dent may waive the necessity of a finding ofprobable cause with the consent of the coun-sel and the chairperson of the GrievanceCommittee. A decision of a panel of thecommittee may not be appealed to the Griev-ance Committee as a whole or to anotherpanel (except as provided in 27 N.C.A.C.1A, .0701(a)(3)).

...(j) Letters of Warning...(4) In cases in which the respondent re-fuses the letter of warning, the counselwill prepare and file a complaint againstthe respondent at the commission for ahearing pursuant to Rule .0114 of this

subchapter.(k) Admonitions, Reprimands, and Cen-

sures...(l) Procedures for Admonitions, and

Reprimands, and Censures(1) A record of any admonition, or rep-rimand, or censure issued by the Griev-ance Committee will be maintained inthe office of the secretary. (2) A copy of the admonition, or repri-mand, or censure will be served uponthe respondent in person or by certifiedmail. A respondent who cannot, with duediligence, be served by certified mail orpersonal service shall be deemed servedby the mailing of a copy of the admoni-tion, or reprimand, or censure to the re-spondent’s last known address on file withthe NC State Bar. Service shall be deemedcomplete upon deposit of the admoni-tion, or reprimand, or censure in a post-paid, properly addressed wrapper in apost office or official depository underthe exclusive care and custody of theUnited States Postal Service.(3) Within 15 days after service the re-spondent may refuse the admonition, orreprimand, or censure and request a hear-ing before the commission. Such refusaland request will be in writing, addressedto the Grievance Committee, and servedupon the secretary by certified mail, re-turn receipt requested. The refusal willstate that the admonition, or reprimand,or censure is refused.(4) In cases in which the respondent re-fuses an admonition or reprimand, thecounsel will prepare and file a complaintagainst the respondent pursuant to Rule.0114 of this subchapter. If a refusal andrequest are not served upon the secretarywithin 15 days after service upon the re-spondent of the admonition, or repri-mand, or censure, the admonition, orreprimand, or censure will be deemed ac-cepted by the respondent. An extensionof time may be granted by the chairpersonof the Grievance Committee for goodcause shown. A censure that is deemedaccepted by the respondent must be filedas provided by Rule .0127(a)(3) of this

subchapter.(5) In cases in which the respondent re-fuses an admonition, or reprimand, orcensure, the counsel will prepare and filea complaint against the respondent atthe commission. pursuant to Rule .0114of this subchapter.(m) Procedure for Censures (1) If the Grievance Committee deter-mines that the imposition of a censureis appropriate, the committee will issuea notice of proposed censure and a pro-posed censure to the respondent.(2) A copy of the notice and the pro-posed censure will be served upon therespondent in person or by certifiedmail. A respondent who cannot, withdue diligence, be served by certified mailor personal service shall be deemedserved by the mailing of a copy of thenotice and proposed censure to the re-spondent’s last known address on filewith the NC State Bar. Service shall bedeemed complete upon deposit of thenotice and proposed censure in a post-paid, properly addressed wrapper in apost office or official depository underthe exclusive care and custody of theUnited States Postal Service. The re-spondent must be advised that he or shemay accept the censure within 15 daysafter service upon him or her or a formalcomplaint will be filed before the com-mission.(3) The respondent’s acceptance mustbe in writing, addressed to the GrievanceCommittee, and served on the secretaryby certified mail, return receipt re-quested. Once the censure is acceptedby the respondent, the discipline be-comes public and must be filed as pro-vided by Rule .0123(a)(3) of this sub-chapter.(4) If the respondent does not acceptthe censure, the counsel will file a com-plaint against the defendant pursuant toRule .0114 of this subchapter.(n)(m) Disciplinary Hearing Commis-

sion Complaints - Formal complaints willbe issued in the name of the North CarolinaState Bar as plaintiff and signed by the chair-person of the Grievance Committee. Amend-

44 FALL 2018

ments to complaints may be signed by thecounsel alone, with the approval of the chair-person of the Grievance Committee.

[The following is an entirely new rule.]Rule .0135, Noncompliance Suspension(a) Noncompliant and Noncompliance

defined. Failure to respond fully and timelyto a letter of notice issued pursuant toN.C.A.C. 1B, .0112, failure to respond fullyand timely to any request from the State Barfor additional information in any pendinggrievance investigation, failure to respondfully and timely to any request from the StateBar to produce documents or other tangibleor electronic materials in connection with agrievance investigation, and/or failure to re-spond fully and timely to a subpoena issuedby the chair of the Grievance Committee orissued by the secretary of the State Bar shallbe referred to herein as “noncompliant” or“noncompliance.”

(b) Petition for Noncompliance Suspen-sion

If a respondent against whom a grievancefile has been opened and who has been servedwith a letter of notice or who has been servedwith a subpoena issued by the chair of theGrievance Committee or issued by the sec-retary of the State Bar is noncompliant, theState Bar may petition the chair of the Dis-ciplinary Hearing Commission for an orderrequiring the respondent to show cause whythe chair should not enter an order suspend-ing the respondent’s law license.

(c) Content of Petition (1) The petition shall be a verified peti-tion, or shall be supported by an affidavit,demonstrating by clear, cogent, and con-vincing evidence that the respondent isnoncompliant.(2) The petition shall set forth the effortsmade by the State Bar to obtain the re-spondent’s compliance. (3) Service of Petition

(A) The petition shall be served uponthe respondent by mailing a copy of thepetition addressed to the last addressthe respondent provided to the Mem-bership Department of the State Barpursuant to N.C. Gen. Stat. § 84-34 oraddressed to any more recent addressthat might be known to the State Barrepresentative who is attempting serv-ice.(B) Service of the petition shall be com-plete upon mailing.

(d) Order to Show Cause(1) Upon receiving the State Bar’s filedpetition, the chair of the DHC shall issueto the respondent an order to show cause. (2) The order to show cause shall notifythe respondent that the respondent’s non-compliance or failure to respond to theorder to show cause may result in sus-pension of the respondent’s law license.(3) The order to show cause shall beserved upon the respondent by mailing acopy of the order addressed to the lastaddress the respondent provided to theMembership Department of the State Barpursuant to N.C. Gen. Stat. § 84-34, ad-dressed to any more recent address thatmight be known to the DHC, or ad-dressed to the address where the State Barserved the petition.(4) Service of the order to show causeshall be complete upon mailing. (e) Response to Order to Show Cause(1) The respondent shall respond to theorder to show cause within 14 days ofthe date of service of the order upon therespondent. (2) If the respondent responds to the or-der to show cause within 14 days of thedate of service of the order upon the re-spondent, the chair of the DHC shallschedule a hearing on the order to showcause within ten days of the filing of therespondent’s response and shall providenotice to the respondent and to the StateBar of such hearing.(3) If the respondent does not file a re-sponse to the order to show cause within14 days of the date of service of the orderto show cause upon the respondent, thechair of the DHC may enter an ordersuspending the respondent’s law license.Such order of suspension will remain ineffect until the chair enters an order find-ing by clear, cogent, and convincing evi-dence that the respondent fully cured thenoncompliance and reinstating the re-spondent’s law license to active status. (f ) Hearing on Order to Show Cause;

Burden of Proof(1) The State Bar shall have the burdenof proving the respondent’s noncompli-ance by clear, cogent, and convincing ev-idence.(2) If the chair of the DHC finds thatthe State Bar has met its burden of proof,the burden of proof shall shift to the re-spondent to prove one or more of the

following by clear, cogent, and convincingevidence:

(A) That the respondent was and is fullyin compliance; (B) That the respondent has fully curedall noncompliance; or (C) That there is good cause for the re-spondent’s noncompliance.

(g) Entry of OrderIf the chair finds that the State Bar has

met its burden of proof; finds by clear, co-gent, and convincing evidence that the re-spondent is noncompliant; finds that the re-spondent has not met the respondent’sburden of proof; and fails to find by clear,cogent, and convincing evidence any of thecircumstances listed in paragraph 6(b) above,the chair may enter an order suspending therespondent’s law license. Such order of sus-pension shall remain in effect until the chairenters an order finding by clear, cogent, andconvincing evidence that the respondent fullycured the noncompliance and reinstating therespondent’s law license to active status.

(h) Wind DownAny attorney suspended for noncompli-

ance shall comply with the wind-down pro-visions for suspended attorneys as set forthin N.C.A.C. 1B .0128.

CommentsThe State Bar welcomes your com-

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

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. Unless otherwise noted, pro-posed additions to rules are printed inbold and underlined; deletions are inter-lined.


(i) Reinstatement from NoncomplianceSuspension

(1) Following entry of a noncompliancesuspension order, the respondent mayseek reinstatement by filing a verified pe-tition with the chair of the DHC demon-strating by clear, cogent, and convincingevidence that the respondent has become,and is at the time of the petition, fullycompliant. The respondent shall simul-taneously serve a copy of the verified pe-tition on the State Bar.(2) The State Bar shall have five days fromthe date of receipt to file an objection tothe respondent’s petition. If the State Bardoes not object, the chair may enter anorder finding by clear, cogent, and con-vincing evidence that the respondent hasbecome, and is at the time of the petition,fully compliant and reinstating the re-spondent to the active practice of law.(3) If the State Bar objects to the petition,the chair shall schedule a hearing withinten days of the filing of such objection.It shall be the respondent’s burden toprove by clear, cogent, and convincingevidence that the respondent has become,and remains at the time of the hearing,fully compliant.(4) At the conclusion of the hearing, ifthe chair finds that the respondent hasmet her/his burden of proof and finds byclear, cogent, and convincing evidencethat the respondent is fully compliant atthe time of the hearing, the chair shallenter an order reinstating the respondentto the active practice of law.(j) Subsequent Petitions for Noncompli-

ance SuspensionThe State Bar may file a petition under

this rule on the first occasion when a re-spondent is noncompliant and may file apetition on any subsequent occasions whena respondent is noncompliant.

Proposed Amendments to theMinimum Standards for ContinuedCertification of Specialists and to theRecertification Standards for AllSpecialties

27 N.C.A.C. 1D, Section .1700, ThePlan for Legal Specialization; Section .2100,Certification Standards for the Real PropertyLaw Specialty; Section .2200, CertificationStandards for the Bankruptcy Law Specialty;Section .2300, Certification Standards forthe Estate Planning and Probate Law Spe-

cialty; Section .2400, Certification Standardsfor the Family Law Specialty; Section .2500,Certification Standards for the Criminal LawSpecialty; Section .2600, Certification Stan-dards for the Immigration Law Specialty;Section .2700, Certification Standards forthe Workers’ Compensation Law Specialty;Section .2800, Certification Standards forthe Social Security Disability Law Specialty;Section .2900, Certification Standards forthe Elder Law Specialty; Section .3000, Cer-tification Standards for the Appellate PracticeSpecialty; Section .3100, Certification Stan-dards for the Trademark Law Specialty; Sec-tion .3200, Certification Standards for theUtilities Law Specialty; and Section .3300,Certification Standards for the Privacy andInformation Security Law Specialty

The proposed amendments reduce thenumber of peer references required for re-certification as a specialist from ten to sixfor all specialties.

Rule .1721, Minimum Standards forContinued Certification of Specialists

(a) The period of certification as a spe-cialist shall be five years…To qualify for con-tinued certification as a specialist, a lawyerapplicant must pay any required fee, mustdemonstrate to the board with respect to thespecialty both continued knowledge of thelaw of this state and continued competenceand must comply with the following mini-mum standards.

(1) …(4) The specialist must comply with therequirements set forth in Rules.1720(a)(1) and (4) of this subchapter.(5) The specialist must make a satisfac-tory showing of qualification in the spe-cialty through peer review. The applicantmust provide, as references, the namesof at least six lawyers or judges, all ofwhom are licensed and currently in goodstanding to practice law in any state andfamiliar with the competence and qual-ification of the applicant as a specialist.For an application to be considered,completed peer reference forms must bereceived from at least three of the refer-ences. All other requirements relative topeer review set forth in Rule .1720(a)(4)of this subchapter apply to this stan-dard.(b) …

Section .2100, Certification Standards

for the Real Property Law SpecialtyRule .2106, Standards for Continued

Certification as a SpecialistThe period of certification is five years…

each applicant for continued certification asa specialist shall comply with the specific re-quirements set forth below in addition toany general standards required by the boardof all applicants for continued certification.

(a) Substantial Involvement - …(b) Continuing Legal Education - …(c) Peer Review - The applicant must

provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in this state and familiar withthe competence and qualification of the ap-plicant as a specialist. For an application tobe considered, completed peer referenceforms must be received from at least threeof the references. All other requirementsrelative to peer review set forth in The spe-cialist must comply with the requirementsof Rule .2105(d) of this subchapter apply tothis standard.

(d) Time for Application - …

Section .2200, Certification Standardsfor the Bankruptcy Law Specialty

Rule .2206 Standards for ContinuedCertification as a Specialist

The period of certification is five years…each applicant for continued certification asa specialist shall comply with the specific re-quirements set forth below in addition toany general standards required by the boardof all applicants for continued certification.



(d) …

Section .2300, Certification Standardsfor the Estate Planning and Probate Law

SpecialtyRule .2306, Standards for Continued

Certification as a SpecialistThe period of certification is five years…

each applicant for continued certification asa specialist shall comply with the specific re-quirements set forth below in addition toany general standards required by the boardof all applicants for continued certification.




Section .2400, Certification Standardsfor the Family Law Specialty

Rule .2406, Standards for ContinuedCertification as a Specialist





Section .2500, Certification Standardsfor the Criminal Law Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in this state and familiar withthe competence and qualification of the ap-plicant as a specialist. For an application tobe considered, completed peer referenceforms must be received from at least threeof the references. Each applicant also mustprovide the names and addresses of the fol-lowing: (i) five lawyers and judges who prac-tice in the field of criminal law and whoare familiar with the applicant’s practice,and (ii) opposing counsel and the judge infour recent cases tried by the applicant toverdict or entry of order. All other require-ments relative to peer review set forth inRule .2505(d) of this subchapter apply tothis standard.


Rule .2509, Standards for ContinuedCertification as a Specialist in JuvenileDelinquency Law



provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in this state, practice in thefield of juvenile delinquency law or criminallaw or preside over juvenile delinquency orcriminal law proceedings, and are familiarwith the competence and qualification ofthe applicant as a specialist. An applicantmust receive a minimum of three favorablepeer reviews to be considered by the boardfor compliance with this standard. All otherrequirements relative to peer review set

forth in The specialist must comply withthe requirements of Rule .2508(d) of thissubchapter apply to this standard.

(d) Time for Application – …

Section .2600, Certification Standardsfor the Immigration Law Specialty






Section .2700, Certification Standardsfor the Workers’ Compensation Law Spe-cialty




provide, as references, the names of at leastsix lawyers, commissioners or deputy com-missioners of the North Carolina IndustrialCommission, or judges, all of whom are li-censed and currently in good standing topractice law in this state and familiar withthe competence and qualification of the ap-plicant as a specialist. For an application tobe considered, completed peer referenceforms must be received from at least three

46 FALL 2018

of the references. All other requirementsrelative to peer review set forth in The spe-cialist must comply with the requirementsof Rule .2705(d) of this subchapter apply tothis standard.


Section .2800, Certification Standardsfor the Social Security Disability Law Spe-cialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in a jurisdiction in the UnitedStates and are familiar with the competenceand qualification of the applicant as a spe-cialist. For an application to be considered,completed peer reference forms must be re-ceived from at least three of the references.All other requirements relative to peer re-view set forth in The specialist must complywith the requirements of Rule .2805(d) ofthis subchapter apply to this standard.


Section .2900, Certification Standardsfor the Elder Law Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in this state and familiar withthe competence and qualification of the ap-plicant as a specialist. For an application tobe considered, completed peer referenceforms must be received from at least three

of the references. All other requirementsrelative to peer review set forth in The spe-cialist must comply with the requirementsof Rule .2905(e) of this subchapter apply tothis standard.


Section .3000, Certification Standardsfor the Appellate Practice Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law, have significant legal or judicialexperience in appellate practice, and are fa-miliar with the competence and qualifica-tion of the applicant as a specialist. For anapplication to be considered, completedpeer reference forms must be received fromat least three of the references. All other re-quirements relative to peer review set forthin The specialist must comply with the re-quirements of Rule .3005(d) of this sub-chapter apply to this standard.


Section .3100, Certification Standardsfor the Trademark Law Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law, have significant legal or judicialexperience in trademark law, and are famil-iar with the competence and qualificationof the applicant as a specialist. For an ap-plication to be considered, completed peer

reference forms must be received from atleast three of the references. All other re-quirements relative to peer review set forthin The specialist must comply with the re-quirements of Rule .3105(d) of this sub-chapter apply to this standard.


Section .3200, Certification Standardsfor the Utilities Law Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law, have significant legal or judicialexperience in utilities law, and are familiarwith the competence and qualification ofthe applicant as a specialist. For an applica-tion to be considered, completed peer ref-erence forms must be received from at leastthree of the references. All other require-ments relative to peer review set forth inThe specialist must comply with the require-ments of Rule .3205(d) of this subchapterapply to this standard.


Section .3300, Certification Standardsfor the Privacy and Information SecurityLaw Specialty




provide, as references, the names of at leastsix lawyers or judges, all of whom are li-censed and currently in good standing topractice law in North Carolina or anotherjurisdiction in the United States; however,no more than three reference may be li-


48 FALL 2018

censed in another jurisdiction. Referencesmust be familiar with the competence andqualification of the applicant as a specialist.For an application to be considered, com-pleted peer reference forms must be receivedfrom at least three of the references. Allother requirements relative to peer reviewset forth in The specialist must comply withthe requirements of Rule .3305(d) of thissubchapter apply to this standard.


Proposed Amendments to the Rulesof Professional Conduct

27 NCAC 2, Rule 1.15, SafekeepingProperty; Rule 3.5, Impartiality and Deco-rum of the Tribunal; and Rule 5.4, Profes-sional Independence of Lawyer

Proposed amendments to the officialcomment to Rule of Professional Conduct1.15, Safekeeping Property, and to the bodyof Rule 5.4, Professional Independence ofLawyer, were originally published for com-ment in the Fall 2017 edition of the Journalupon the recommendation of the EthicsCommittee. At the October 2017 quarterlymeeting, the committee asked that the pro-posed amendments not be submitted to thecouncil for final consideration pending fur-ther action on a related proposed ethics opin-ion, Proposed 2017 FEO 6, concerning AvvoLegal Services (ALS), an online client-lawyermatching service. In June 2018, the ownerof ALS advised the State Bar that it woulddiscontinue ALS at the end of July. In lightof this, the Ethics Committee withdrew pro-posed 2017 FEO 6 (see Ethics Opinions Ar-ticle, page 39). The committee, however, rec-ommended to the council that the proposedrule amendments be published again to so-licit additional comments from the Bar. Theproposed amendments to Rule 5.4 varyslightly from the version published in theFall 2017 edition of the Journal.

The proposed amendments to the officialcomment to Rule 1.15 explain the due dili-gence required if a lawyer uses an interme-diary (such as a bank, credit card processor,or litigation funding entity) to collect a fee.The proposed amendments to Rule 5.4 addan exception to the prohibition on fee shar-ing with a nonlawyer which would allow alawyer to pay a portion of a legal fee to cer-tain third parties if the amount paid is foradministrative or marketing services andthere is no interference with the lawyer’s in-dependent professional judgment.

Proposed amendments to Rule 3.5 correcta typographical error included in an amend-ment to the Rules of Professional Conductapproved by the North Carolina SupremeCourt on April 5, 2018. They also revise theofficial comment to specify that gifts or loansto judges are only prohibited if made undercircumstances that might give the appearancethat the gift or loan was made to influenceofficial action. The latter proposed amend-ment is consistent with the prohibition inthe N.C. Code of Judicial Conduct.

Rule 1.15, Safekeeping PropertyComment To Rule 1.15 and All Sub-

parts [1] …Prepaid Legal Fees[12] …[13] Client or third-party funds on oc-

casion pass through, or are originated by,intermediaries before deposit to a trust orfiduciary account. Such intermediaries in-clude banks, credit card processors, litiga-tion funding entities, and online marketingplatforms. A lawyer may use an intermedi-ary to collect a fee. However, the lawyermay not participate in or facilitate the col-lection of a fee by an intermediary that isunreliable or untrustworthy. Therefore, thelawyer has an obligation to make a reason-able investigation into the reliability, sta-bility, and viability of an intermediary todetermine whether reasonable measures arebeing taken to segregate and safeguardclient funds against loss or theft and, shouldsuch funds be lost, that the intermediaryhas the resources to compensate the client.Absent other indicia of fraud (such as theuse of non-industry standard methods forcollection of credit card information), alawyer’s diligence obligation is satisfied ifthe intermediary collects client funds usinga credit or debit card. Unearned fees, if col-lected by an intermediary, must be trans-ferred to the lawyer’s designated trust or fi-duciary account within a reasonable periodof time so as to minimize the risk of losswhile the funds are in the possession of an-other, and to enable the collection of inter-est on the funds for the IOLTA program orthe client as appropriate. See 27 N.C.A.C.1B, Sect. .1300.

Abandoned Property[13] [14] …[Renumbering remaining paragraphs.]

Rule 3.5, Impartiality and Decorum ofthe Tribunal

(a) A lawyer representing a party in a mat-ter pending before a tribunal shall not:

(1) seek to influence a judge, juror, mem-ber of the jury venire, or other official bymeans prohibited by law; …(b)…(c) A lawyer shall reveal promptly to the

court improper conduct by a juror or a mem-ber of the jury venire, and improper conductby another person toward a juror, a memberof the jury venire, or the family members ofa juror or a member of the jury venire’s fam-ily.

(d) …Comment[1] Many forms of improper influence

upon a tribunal are proscribed by criminallaw…

[7] The impartiality of a public servantin our legal system may be impaired by thereceipt of gifts or loans. A lawyer, therefore,is never justified in making a gift or a loanto shall not give or lend anything of valueto a judge, a hearing officer, or an official oremployee of a tribunal under circumstanceswhich might give the appearance that thegift or loan is made to influence official ac-tion.

[8] All litigants and lawyers should haveaccess to tribunals on an equal basis…

Rule 5.4, Professional Independence ofLawyer

(a) A lawyer or law firm shall not sharelegal fees with a nonlawyer, except that:

(1) …(4) …; and(5) …; and(6) a lawyer or law firm may pay a por-tion of a legal fee to a credit card proces-sor, group advertising provider, or onlinemarketing platform if the amount paidis for payment processing or for admin-istrative or marketing services, and thereis no interference with the lawyer’s in-dependent professional judgment orwith the client-lawyer relationship.(b) …Comment[1] …[2] A determination under paragraph

(a)(6) of this rule as to whether an adver-tising provider or online marketing plat-form (jointly “platform”) will interfere withthe independent professional judgment of

a lawyer requires consideration of a numberof factors. These factors include, but arenot limited to, the following: (a) the per-centage of the fee or the amount the plat-form charges the lawyer; (b) the percentageof the fee or the amount that the lawyer re-ceives from clients obtained through theplatform; (c) representations made toprospective clients and to clients by theplatform; (d) whether the platform com-

municates directly with clients and to whatdegree; and (e) the nature of the relationshipbetween the lawyer and the platform. A re-lationship wherein the platform, rather thanthe lawyer, is in charge of communicationswith a client indicates interference with thelawyer’s professional judgment. The lawyershould have unfettered discretion as towhether to accept clients from the platform,the nature and extent of the legal services

the lawyer provides to clients obtainedthrough the platform, and whether to par-ticipate or continue participating in theplatform. The lawyer may not permit theplatform to direct or control the lawyer’slegal services and may not assist the plat-form to engage in the practice of law, in vi-olation of Rule 5.5(a).

[23] …[Renumbering remaining paragraphs.]


In Memoriam

Thomas Ernest Cummings Charlotte, NC

Charles Edgar Dobbin Sr. Lenoir, NC

Harold Dean Downing Fayetteville, NC

John Edwin Duke Cary, NC

David S. Dunkle Birmingham, AL

Harper Johnston Elam III Greensboro, NC

Thomas Francis Ellis Raleigh, NC

Richard W. Ellis Sr. Candler, NC

Michael Gregory Ferguson Asheville, NC

Nelson H. Graves Diamond Bar, CA

Jeffrey Bennett Hargett Charlotte, NC

William Paul Holt Jr. Sylva, NC

Faye Dalton Ivey Greensboro, NC

Harvey A. Jonas Jr. Newton, NC

John Kenneth Lee Greensboro, NC

Joe S. Major III Charlotte, NC

Bryan Douglas Martin Advance, NC

Samuel Martin Millette Charlotte, NC

Warren Bickett Morgan Jr. Marshville, NC

Joe Henderson Morris Fayetteville, NC

Kara Brooke Ottesen Cary, NC

Patrick Adam Pait Lumberton, NC

Grady Siler Patterson Jr. Raleigh, NC

Paul Jones Raisig Jr. Sanford, NC

James A. Reno Garner, NC

Theodore Reaves Reynolds Raleigh, NC

James Russell Sugg Sr. Durham, NC

Gerald Mark Swartzberg Greensboro, NC

Minette Conrad Trosch Charlotte, NC

R. Leslie Turner Pink Hill, NC

Paul Vancil Chapel Hill, NC

Chester E. Whittle Jr. Boone, NC

Charles Watkins Wilkinson Jr. Oxford, NC

Arthur Wayne Yancey Durham, NC

LAP (cont.)

or to end the relationship while protectingmy version of events. I console myself byreminding myself how smart or right I am.Reactions are a way of holding onto whatwas, even if that always was a fantasy or anillusion.”

When we project an image like PatrickWarburton we exhaust ourselves. Innerpeace does not depend on, nor can it be cre-ated by, external conditions.

We are better served focusing our ener-gies on what we really have any control over,and that is ourselves. As Brian Kesslerpoints out, “The closest to being in controlwe’ll ever be is in that moment when werealize that we’re not.” We are always capa-ble of controlling our attitudes and actions,and thus our thoughts and behaviors.Letting go of expectations, being presentand in the moment, reserving judgments,and accepting life on life’s terms, while dif-ficult to achieve, is far easier than trying tomicromanage the universe. To shift into thisplace of greater freedom requires a combi-nation of surrender, acceptance, faith, andtrust. It requires a firm belief that we will beOK no matter what. “It is after all, thisinternal control that has the power andinfluence to shape our life choices, deci-sions, actions and ultimate destiny.” n

The North Carolina Lawyer AssistanceProgram is a confidential program of assistancefor all North Carolina lawyers, judges, and lawstudents, which helps address problems of stress,depression, alcoholism, addiction, or otherproblems that may impair a lawyer’s ability topractice. If you would like more information,go to nclap.org or call: Cathy Killian (westernareas of the state) at 704-910-2310, or NicoleEllington (for eastern areas of the state) at 919-719-9267.

50 FALL 2018

B A R U P D A T E S

Client Security Fund Reimburses Victims

At its July 26, 2018, meeting, the NorthCarolina State Bar Client Security Fund Boardof Trustees approved payments of $23,423.53to 16 applicants who suffered financial lossesdue to the misconduct of North Carolinalawyers.

The payments authorized were:1. An award of $175 to a former client of

Adam Baker of Raleigh. The board deter-mined that Baker was retained to get a client’slarceny charge dismissed and expunged fromhis record. The charge was dismissed after theclient got a deferred prosecution. Baker thenfiled the expunction petition, but failed topay the filing fee he had received to the clerk.Baker was disbarred on February 13, 2017.The board previously reimbursed four otherBaker clients a total of $15,000.

2. An award of $1,105 to a former clientof Garey Ballance of Warrenton. The boarddetermined that Ballance was retained to han-dle a client’s divorce. Ballance prepared a com-plaint, but neglected the matter and failed tofile it prior to the opposing party filing fordivorce. Ballance failed to provide any mean-ingful legal services for the client for the feepaid. Ballance was disbarred on November13, 2015. The board previously reimbursed14 other Ballance clients a total of $20,646.

3. An award of $1,003.53 to a formerclient of Robert Chandler Jr. of Rocky Mount.The board determined that Chandler was re-tained to file a client’s workers’ comp claimand to bring a third-party tort claim for theclient’s injuries. After the comp carrier madeindemnity payments to the client and paidthe client’s medical providers, Chandler noti-fied the comp carrier that he was filing a third-party claim. Upon settling the third-partyclaim, Chandler deposited the funds into hisoperating account, then took his fee plus ex-penses, disbursed half of the balance to theclient, and retained the remaining funds topay lien holders. Chandler failed to pay thelien holders and embezzled those funds. Chan-dler was disbarred on July 11, 2016. Theboard previously reimbursed two other Chan-dler clients a total of $4,030.61.

4. An award of $6,800 to a former clientof Christopher Greene of Charlotte. Theboard determined that Greene was retainedto represent a client in filing for alien em-ployment certification and later in filing anapplication for permanent status. Greenefailed to provide the client with any mean-ingful legal services for either the labor certi-fication or the permanent status applicationfor the fees paid. Greene was disbarred onFebruary 11, 2017. The board previously re-imbursed seven other Greene clients a totalof $15,635.

5. An award of $2,490 to a former clientof Christopher Greene. The board determinedthat Greene was retained to represent a clientand his son in filing for permanent status.Greene was disbarred before providing theclient with any meaningful services for thefee paid.

6. An award of $3,000 to a former clientof Christopher Greene. The board determinedthat Greene was retained to represent a clientin filing for asylum. Although Greene filedan asylum claim for the client with the US-CIS, it was meaningless because the clienthad previously been ordered to be removedfrom the country by an immigration court inTexas back in November 2005. Greene failedto file a motion to reopen the Texas matter;therefore, providing no meaningful legal serv-ices for the fee paid.

7. An award of $2,340 to a former clientof Christopher Greene. The board determinedthat Greene was retained to file a client’s U-Visa application. Greene never provided anymeaningful legal services to the client for thefee paid.

8. An award of $2,360 to a former clientof Christopher Greene. The board determinedthat Greene was retained to file citizenshipapplications on behalf of a client and theclient’s wife. Greene failed to remit the filingfees with the applications, so they were notaccepted. After the applications were returned,Greene still failed to return them with the fil-ing fees prior to his disbarment. Greene failedto provide any meaningful legal services to

the client for the fee paid. 9. An award of $375 to a former client of

Charles Gurley of Goldsboro. The board de-termined that Gurley was retained to handlea client’s traffic matter. Gurley failed to pro-vide any meaningful legal services to the clientfor the fee paid prior to being jailed and thensuspended from the practice of law by a su-perior court judge due to his failing to providethe State Bar with records of his handling ofclients’ funds. Gurley was enjoined from prac-ticing law on November 22, 2017. The boardpreviously reimbursed one other Gurley client$1,125.

10. An award of $1,000 to a former clientof Charles Gurley.The board determined thatGurley was retained to represent a client on aDWI charge. Gurley failed to provide theclient with any meaningful legal services priorto being suspended from the practice of law.

11. An award of $400 to a former clientof Charles Gurley. The board determined thatGurley was retained to represent a client on aDWLR charge. Gurley failed to provide theclient with any meaningful legal services priorto being suspended from the practice of law.

12. An award of $375 to a former clientof Charles Gurley. The board determinedthat Gurly was retained to represent a clienton two traffic charges. Gurley failed to pro-vide the client with any meaningful legal serv-ices prior to being suspended from the prac-tice of law.

13. An award of $250 to a former clientof Charles Gurley. The board determined thatGurley was retained to represent a client onan NOL charge. Gurley failed to provide theclient with any meaningful legal services priorto being suspended from the practice of law.

14. An award of $375 to a former clientof Charles Gurley. The board determined thatGurley was retained to represent a client on aspeeding ticket. Gurley failed to provide theclient with any meaningful legal services priorto being suspended from the practice of law.

15. An award of $1,000 to a former clientof Charles Gurley. The board determined thatGurley was retained to represent a client on a

Greensboro Attor-ney Barbara R.Christy has been se-lected by the StateBar's NominatingCommittee to standfor election to the of-fice of vice-presidentof the North CarolinaState Bar. The election

will take place in October at the State Bar'sannual meeting. At that time, Winston-Salem attorney G. Gray Wilson will assumethe office of president, and Raleigh attorneyC. Colon Willoughby will also stand for elec-tion to the office of president-elect.

Christy earned her BS magna cum laudefrom Appalachian State University, and herJD from the University of North CarolinaSchool of Law.

A member of Schell Bray, her practice fo-cuses on commercial real estate transactions.

Christy’s professional activities includevolunteering with Legal Aid of North Car-olina’s Lawyer on the Line initiative. She isalso a North Carolina State Bar board certi-fied specialist in real property law—business,commercial, and industrial transactions, afellow with the American College of RealEstate Lawyers, and a member of the Pied-mont Triad Commercial Real EstateWomen. Additionally, Christy is involved

with her community, serving on the Boardof Directors for Southern Alamance FamilyEmpowerment, Inc., and is a past memberof the UNC Law Foundation, Inc. Boardof Directors.

As a State Bar councilor, Christy hasserved as vice-chair of the Authorized PracticeCommittee, Grievance Committee, and Leg-islative Committee, and as chair of the EthicsCommittee.

Christy and her family live on a smallfarm in the Snow Camp community wherethey raise beef cattle, honey bees, and fruittrees. She is a member of Saxapahaw UnitedMethodist Church where she has been thelong-time church pianist. n


Christy Nominated as Vice-President

DWI charge. Gurley failed to provide theclient with any meaningful legal services priorto being suspended from the practice of law.

16. An award of $375 to a former clientof Charles Gurley. The board determined thatGurley was retained to represent a client on aspeeding ticket. Gurley failed to provide the

client with any meaningful legal services priorto being suspended from the practice of law.

Additional Charles R. Gurley ClaimsCounsel provided the board with a memo

and attachments relating to 65 additionalclaims pending against Gurley. The board au-

thorized counsel to pay, with consent of onlythe chair, any Gurley claim that shows pay-ment of a specific amount to Gurley for whichGurley failed to provide any meaningful legalservices, such that the claim would have beenon the Consent Pay portion if it reached aboard agenda. n

Freedom for Sale (cont.)

20. Id.

21. Id. at 543.

22. Id.

23. Id. (quoting the district court).

24. Id. (quoting Carson v. Johnson, 112 F.3d 818, 821-22(5th Cir. 1997)).

25. Id. (quoting San Antonio Indep. Sch. Dist. v. Rodriguez,411 U.S. 1, 20 (1973)).

26. Id.

27. Id. at 545.

28. See State v. Thompson, 349 N.C. 483, 499 (1998).

29. Id.

30. Id. at 496.

31. Id. at 498.

32. Id. (quoting Stack v. Boyle, 342 U.S. 1, 4 (1951)).

33. Id. at 499-500 (quoting Coffin v. United States, 156US 432 (1895)).

34. Id. at 500.

35. Id. at 503.

36. The system of bail used in North Carolina originatedin England in the 13th century where a sheriff wasrequired to consider the gravity of the offense charged,the weight of the evidence, and the character of thedefendant prior to considering bail. If bail was madeavailable, a friend or relative of the accused would berequired to promise to forfeit a specified sum of moneyto the court if the defendant failed to appear. Loran L.Lewis, Bail Bond Reform in Allegheny County, 5 Juris:Duquesne L. Sch., News Magazine 10 (May, 1972),bit.ly/2LkdM0l.

37. Crystal S. Yang, Toward an Optimal Bail System, 92NYU L. Rev. 1399 (2017).

38. See note 2, supra.

39. For example, a study in California’s Santa ClaraCounty found that pretrial service supervision cost lessthan 1/10 the cost of pretrial detention in jail ($15 perday vs. $159 per day in jail). Criminal Justice PolicyProgram, California Pretrial Reform: The Next Step inRealignment 7 (Oct. 2017), bit.ly/2uxDXHh.

40. Brent D. Troxell, Understanding Pretrial Programs’Success and Their Effects on County Jails (March 14,2012), unc.live/2LdXKVG.

41. Steps in Being Released to Pretrial Release,bit.ly/2Jrd7oN (Last visited April 10, 2018).

42. Risk-assessment tools use scientific algorithms tomake predictions about the risk posed by individualdefendants. See, e.g., John Clark, Upgrading NorthCarolina’s Bail System: A Balanced Approach to PretrialJustice Using Legal and Evidence-Based Practices 19(Aug., 15 2017).

43. Troxell, supra note 60.

44. Id.

45. Id.

46. Chris Christie, Save Jail for the Dangerous (Apr. 27,2015), bit.ly/1JOiZCI.

47. Sophie Tatum, Kamala Harris, Rand Paul Back Fixesto Bail Process (July 20, 2017), cnn.it/2uqT1X7 (“‘Ourjustice system was designed with a promise: to treat allpeople equally,’ Harris was quoted saying in a newsrelease. ‘Yet more than 450,000 Americans sit in jailtoday awaiting trial and many of them cannot afford“money bail.” In our country, whether you stay in jailor not is wholly determined by whether you're wealthyor not—and that's wrong.’”)

George V. Hanna IIIGeorge V. Hanna III received the John B.

McMillan Distinguished Service Award onMay 3, 2018, at the Mecklenburg CountyBar’s annual Law Day luncheon. The awardwas presented by State Bar President JohnM. Silverstein and State Bar CouncilorRobert C. Bowers.

Mr. Hanna has demonstrated a career-long commitment to pro bono service. He isthe founding member of Moore & VanAllen’s Public Service Committee. He wasalso instrumental in creating Moore & VanAllen’s Housing Rights Project, which helpsprevent homelessness and protects familiesfrom unsafe and unhealthy housing condi-tions. He is a long-term leader in the devel-opment and delivery of pro bono services toclients of Legal Services of SouthernPiedmont and Legal Aid of North Carolina.He served as a member of the Legal Servicesof Southern Piedmont Board of Directorsand also as the board’s president. Mr. Hannaalso served as the chair of the MecklenburgCounty Bar’s Volunteer Lawyer Program.He served for almost a decade on the NorthCarolina Bar Association’s (NCBA) ProBono Planning committee, and has alsoserved on the Chief Justice’s Commissionon Equal Access to Justice, the NCBA’sBoard of Governors, and the NCBA’s 4AllTask Force.

In recognition of his commitment toserving the public through his pro bonoefforts and leadership, Mr. Hanna receivedthe NCBA’s I. Beverly Lake Public ServiceAward in 2010. He went on to receive theDistinguished Pro Bono Service Award in2012. In 2014 he received the CitizenLawyer Award and in 2015 he was honoredwith the Mecklenburg Bar Foundation’sAyscue Professionalism Award.

In addition to his dedication to pro bonoservices, Mr. Hanna has displayed a deepcommitment to diversity and inclusivenessprograms. He was the founding member andchair of Moore & Van Allen’s Diversity

Committee and the founding chair of theMecklenburg County Bar’s Committee onDiversity and Inclusion. In 2006, Mr.Hanna was recognized for his efforts by theDiversity Council of the Carolinas and wasthe 2007 recipient of the Charlotte YMCA’sWill Stratford Diversity Award. In 2009 hewas honored with the Julius L. ChambersDiversity Award.

David R. TeddyAttorney David R. Teddy received the

John B. McMillan Distinguished ServiceAward on June 17, 2018, at the NorthCarolina Advocates for Justice Conventionin Wilmington, NC. State Bar PresidentJohn M. Silverstein presented the award.

Mr. Teddy obtained his law degree fromCampbell University. While at Campbell hewas elected president of the Student BarAssociation. In his final year at Campbell,the Student Bar Association created the“David R. Teddy Innovative Leadership andService Award” as a result of his numerouscontributions to the law school. The award isgiven annually to a Campbell student whodemonstrates a commitment to leadershipand service to the law school.

Mr. Teddy began his legal career as anassociate with Michael S. Kennedy. In 1995

he formed a law firm with Ralph Meekins,which is now the firm of Teddy, Meekins &Talbert. Mr. Teddy is a certified specialist inNorth Carolina criminal law. He is theauthor of the DWI Trial Notebook and theDWI Playbook published by Lexis-Nexis,which are used by most criminal lawyers inthe state of North Carolina.

Mr. Teddy was appointed to the IndigentDefense Services Commission in 2012. Hehas been very active with the North CarolinaAdvocates for Justice. He was appointed tothe Political ACT Committee, was co-chairof the DWI Legislative Task force, and servedas president of the NCAJ from 2012 to2013.

Mr. Teddy is known throughout the west-ern part of North Carolina for being a zeal-ous advocate for all of his clients. He is uni-versally respected by judges, prosecutors, andother defense attorneys.

Nominations SoughtMembers of the Bar are encouraged to

nominate colleagues who have demonstratedoutstanding service to the profession. Thenomination form is available on the State Bar’swebsite, ncbar.gov. Please direct questions toSuzanne Lever, [email protected]. n

B A R U P D A T E S

John B. McMillan Distinguished Service Award

FALL 201852

Speakers on topics relative to the North Carolina State Bar’s regulatory mission areavailable at no charge for presentations in North Carolina to lawyers and to members ofthe public. Topics include the State Bar’s role in the regulation of the legal profession; theState Bar’s disciplinary process; how the State Bar provides ethical guidance to lawyers;the Lawyer Assistance Program of the State Bar; the Client Security Fund; IOLTA:Advancing Justice for more than 20 Years; LegalZoom, and updating concepts of thepractice of law; and anti-trust questions for the regulation of the practice of law in NorthCarolina. Requests for speakers on other relevant topics are welcomed. For more infor-mation, call or email Lanice Heidbrink at 919-828-4630 or [email protected].

Speakers Bureau Available

B A R U P D A T E S

Law School Briefs

Campbell University School of LawCampbell Law confers 123 degrees at 2018

commencement—Campbell Law School con-ferred 123 juris doctor degrees at its 40thannual hooding and graduation ceremonyon May 11 at Memorial Auditorium at theDuke Energy Center for the PerformingArts. United States Deputy Attorney GeneralRod Rosenstein delivered the commence-ment address.

Campbell Law, Medicine to launch JD/DOdual degree program—Campbell Law Schooland Campbell Medicine are partnering tooffer a unique dual degree opportunity. Thenew program allows students to pursue andobtain a Juris Doctor and a Doctor ofOsteopathic Medicine simultaneously.Prospective students will be able to enroll inthe fall of 2019.

The JD/DO program will create highly-credentialed professionals with the skill,expertise, and knowledge to practice in tworespected and noble professions. Graduateswill be poised to obtain significant positionsof leadership, administration, and manage-ment and will be well equipped to serve asleaders in their professional and civic com-munities, working to make significant con-tributions at the intersection of the law andmedicine. The program enables students toearn both degrees in six years of full-timestudy. Students must apply to, and be accept-ed by, both programs.

CPILSA, A.J. Fletcher Foundation awardfive grants for public interest work—TheCampbell Public Interest Law StudentsAssociation (CPILSA) and The A.J. FletcherFoundation (AJF) have awarded five grantsto students for their upcoming work in pub-lic interest this summer. CPILSA will fundtwo $2,350 grants, while AJF will providethree grants of $2,000 each.

S. Elizabeth Stedman (Children’s LawCenter of Central NC) and AlexanderFowler (Maryland Office of the PublicDefender) were awarded grants from CPIL-SA. AJF grants were received by M.C.Skinner (Polanco Law), Tatianna DeBerry

(Wake County district attorney), and SarahSponaugle (NC Innocence InquiryCommission).

Duke Law SchoolKaren “Kerry” Abrams began her tenure

as the James B. Duke and Benjamin N.Duke dean of the Duke University School ofLaw on July 1. Her primary teaching andresearch interests are in the areas of citizen-ship law, immigration law, constitutionallaw, legal history, family law, and gender law.Her scholarship has explored the intersectionof immigration law and family law, the his-tory of immigration law, and the marriageequality movement. She previously was thevice provost for faculty affairs and professorof law at the University of Virginia.

Duke Law alumni and friends have con-tributed nearly $6 million to establish a dis-tinguished professorship in law and judicialstudies and the directorship of the BolchJudicial Institute in honor of Professor DavidF. Levi, formerly the James B. Duke andBenjamin N. Duke dean of the School ofLaw. Levi became the inaugural Levi Familyprofessor of law & judicial studies and direc-tor of the Bolch Judicial Institute on step-ping down as dean on June 30. The endow-ment funds and the positions they supportwill be renamed for him upon his retirementor departure from Duke University.

Brandon L. Garrett, a highly influentialscholar of criminal justice outcomes, evi-dence, and constitutional rights joined theDuke Law faculty on July 1 as the inauguralL. Neil Williams Jr. professor of law. He pre-viously was the White Burkett Miller profes-sor of law and public affairs and JusticeThurgood Marshall distinguished professorof law at the University of Virginia. He is theauthor of five books, including End of itsRope: How Killing the Death Penalty CanRevive Criminal Justice (Harvard UniversityPress, 2017); Too Big to Jail: How ProsecutorsCompromise with Corporations (HarvardUniversity Press, 2014); and Convicting theInnocent: Where Criminal Prosecutions GoWrong (Harvard University Press, 2011).

Elon University School of LawExperienced legal educator joins Elon Law

administration—Professor Wendy B. Scotthas joined the Elon Law administration asassociate dean for academic success and willdirect the law school’s academic and barsupport programs. Prior to joining ElonLaw, Scott led Mississippi College School ofLaw, serving from 2014-2016 as the firstAfrican-American to guide the school asdean. Scott secured her stature in the histo-ry of legal education as the first tenuredAfrican-American woman at Tulane LawSchool and the first African-American toserve Tulane as vice dean for academicaffairs. She went on to teach at NorthCarolina Central University School of Lawfor eight years, serving as associate dean foracademic affairs for three of those years.

Elon Law invited to UN event on immi-gration and refugees—Five Elon Law stu-dents and two faculty members traveled toNew York City in June for the#JoinTogether Conference, a UnitedNations summit of higher education insti-tutions from around the world gathered todiscuss refugee and migrant issues. AssistantProfessor Heather Scavone, director of ElonLaw’s Humanitarian Immigration LawClinic, was part of the conference lineup asa panelist for “Using Diplomacy to Rise toNew Global Challenges.”

Accomplished double alum joins Elon LawBoard of Advisors—A double graduate ofElon University has joined the ElonUniversity School of Law Board ofAdvisors. Mark S. Jetton Jr., ‘06 L’09, afounding partner of Jetton & Meredith,PLLC in Charlotte, will work with otherprominent North Carolina jurists, attor-neys, and business leaders to help steer thedirection of Elon Law as the school beginswork on a strategic plan to guide its growththrough the early part of the next decade.The Elon Law Board of Advisors is chairedby former presidential adviser DavidGergen.


North Carolina Central School ofLaw

On June 22, 2018, North CarolinaCentral University Chancellor JohnsonAkinleye announced the appointment ofNorth Carolina Superior Court Judge ElaineMercia O’Neal as interim dean of the univer-sity’s School of Law.

While serving as the interim dean at theSchool of Law, Judge O’Neal will overseedaily activities of the school and ensure thatthe highest legal educational standards areupheld while the university undertakes anationwide search for a permanent newdean.

A native of Durham, Judge O’Nealearned her undergraduate degree from NorthCarolina Central University in mathematicsand her juris doctorate from NCCU Schoolof Law. Judge O’Neal is an accomplishedand seasoned attorney who began serving asa North Carolina District Court judge in1994 and was elected to the superior courtbench in 2011, where she serves in the 14thDistrict. She worked as a solo legal practi-tioner before being elected to her first judge-ship.

Judge O’Neal will begin her role as inter-im dean on July 16, 2018.

The North Carolina Central UniversitySchool of Law Virtual Justice Project willoffer more tele-law programs throughout theregion using a new $499,000 grant awardedby the US Department of Agriculture.

The Virtual Justice Project, established in2010 to provide legal information via telep-resence and high-definition video conferenc-ing capabilities, serves individuals in ruralcommunities faced with financial and geo-graphic obstacles to gaining legal informa-tion.

The expansion services include helpingpeople learn more about certain areas of thelaw, including wills and estates, financial lit-eracy, divorce, child custody, criminal law,and low-income taxpayer information.

The new grant will allow a total of 65sites to offer teleconference capabilities inregional libraries and offices of Legal Servicesin the western part of the state. There areplans to eventually offer the service in all 100North Carolina counties.

University of North Carolina School of Law

Carolina Law receives $1.53 million gift

from the Kenan Trust for newEntrepreneurship Program—The clinicalprogram will provide rigorous, hands-ontraining for the next generation of public-spirited lawyers while also filling gaps inNorth Carolina’s entrepreneurship ecosys-tem. In addition, the state GeneralAssembly appropriated $465,000 in recur-ring funds to support the program.

School raises $1.5M for annual fund—Making history for the third year in a row,the annual fund received more than $1.5million for the 2018 fiscal year. This repre-sents more than a 20% increase over lastyear’s record. The generous gifts fromalumni, faculty, staff, and friends gotowards providing student scholarships,supporting faculty excellence, andstrengthening experiential learning oppor-tunities.

Five students selected for inauguralSummer Judicial Fellows Program—TheRobinson O. Everett Sr. Judicial FellowsProgram exposes students to litigationthrough working with judges in districtand superior court. The summer jobs arefunded by a gift from the Kathrine R.Everett Charitable Trust.

Law students against sexual and domesticviolence recognized at UNC public serviceawards—The group was recognized byUNC Chancellor Carol Folt for its work toprotect victims from their abusers throughthe Ex Parte Project, including its partner-ship with the Orange County Sheriff ’sDepartment.

Tax law expert Leigh Osofsky joins facul-ty—Osofsky comes to Chapel Hill fromthe University of Miami School of Law,and teaches Federal Income Tax,Partnership Tax, and Tax Law Research andWriting.

Six alumni recognized at NC Bar associa-tion meeting, Jackie Grant sworn in as presi-dent—Dan Green ’79, Nicholas Long Jr.’81, and Robert B. Norris ’76 received theCitizen Lawyer Award. Mike McIntyre II’81 received the I. Beverly Lake Jr. PublicService Award. Jacqueline D. Grant ’95 wassworn in as president and LeAnn NeaseBrown ’84 is president-elect.

Wake Forest School of Law Marie-Amélie George joined Wake

Forest University School of Law in July2018 as an assistant professor of law. Afterearning her JD from Columbia Law School

in 2007, George worked as a prosecutor atthe Miami State Attorney’s Office and lateras a litigation associate at Paul, Weiss,Rifkind, Wharton & Garrison in NewYork. She returned to academia for law fel-lowships at Columbia and Harvard univer-sities as she pursued her Ph.D. in history atYale University. George’s research exploreshow the legal history of LGBT rightsinforms current legal debates and norma-tive questions, examining family law, crim-inal law, employment anti-discriminationprotections, and constitutional jurispru-dence.

Raina Haque, a Winston-Salem lawyerand founding partner of Erdos IntellectualProperty Law + Startup Legal, joined WakeForest Law as a professor of practice intechnology on July 1. Haque most recentlyco-taught the course, “Law 469:Technology and Modern Law Practice,” asan adjunct professor for the law schoolalong with alumnus Jon Mayhugh, whoworks with Haque at Erdos. In addition tocontinuing to teach the course on technol-ogy in the modern law practice, Haque willadd a course in blockchain and smart con-tracts. Haque will teach a third course tolaw students, which may be open to non-Wake Forest students interested in execu-tive education on technology. Haque willalso continue her law practice.

Wake Forest Law alumnus Brad Wilsonjoined Wake Forest University as executivein residence with the School of Law andthe School of Business on August 1. Wilsonis the retired president and CEO of BlueCross Blue Shield of North Carolina(BCBSNC). He joined BCBSNC in 1996.Before he became president and CEO in2010, he served in a variety of leadershippositions with the organization, includingexecutive vice president, general counsel,and corporate secretary. n

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