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November 2009

A publication of the Mecklenburg County Bar

2 From the President Mecklenburg Bar News 2 The – Styling and Profiling Panel Reiterates 3 Corporate Importance of Diversity

Volume 36 No. 5

© 2009 Mecklenburg County Bar

MCB Survey Findings Influence Future Planning Framework

Lawyer Program 6 Volunteer Spotlight

The Mecklenburg County Bar (MCB) leadership and staff have been hard at work developing a thoughtful strategic plan that will serve as the foundation for its future. With an annual growth rate of approximately 3.5 percent, the MCB is developing programs and services that will coincide with the needs of its increasing membership. In 2008, the MCB partnered with the Charlotte School of Law and the McColl School of Business to launch the MCB Pulse of the Profession (POP) survey. This comprehensive survey asked MCB members how the Bar can better support them, requested feedback on professional satisfaction and collected basic demographic information. “To better serve our rapidly expanding membership, we must ensure we are providing quality services that are relevant to the legal community,” said MCB President Pat Kelly. “It is essential we incorporate member feedback when creating a blueprint for the MCB’s future. The POP survey results will enable the MCB to develop pertinent, efficient and valued member services.” The POP survey was the first membership-wide evaluation conducted by the MCB. While insightful, the process was not void of challenges. Technical difficulties limited members’ access to the questionnaire on some computers. Varying demographic populations had low response rates leading to some statistically insignificant data. Finally, the question-response format occasionally resulted in indirect responses limiting the MCB’s ability to conduct further multivariate analyses. The data produced was not as strong as the MCB had hoped due to these challenges. These limitations, however, have provided clarity to developing future surveying processes.

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Survey Findings and Highlights MCB Membership Services

Rise of Corporate 3 The Compliance the Most Exciting 4 Attend Law & Society Ever! Sought for 4 Nominations Julius L. Chambers Diversity Champion Award New Day for the December 5 ALuncheon Series Our Newest Team 5 Meet Member

Wi-Fi Available Mecklenburg County Courthouse

Receives Grant for 7 MCB Diversity Pipeline Program

8 Young Lawyers Division 9 Fall 2009 Swearing-In 12 Lawyer Referral Service 12 2009 Bar Holiday Party 13 Bar Leadership Institute

POP survey respondents indicated the three most important services the MCB can offer are networking opportunities, Continuing Legal Education (CLE) training and community or public projects. Respondents also indicated they are more likely to participate in MCB events with networking or educational opportunities. Some respondents desired more informal networking sessions or mentoring programs to foster better member relations. An overwhelming 82 percent of respondents indicated that they are mostly satisfied with the overall services provided by the MCB. Twenty-nine percent indicated that the MCB usually impacts their level of professional satisfaction. While the survey results are not surprising, they do reiterate the need for the MCB to continue to enhance and increase its most desired services. With regards to CLE training, 86 percent of survey respondents noted that the course topic is the most important factor impacting their likelihood to attend. When asked what issues, factors, or concerns the MCB should address the responses were varied, including improving the public perception of the profession, supporting public interest attorneys, and increasing collegiality among members. continued on page 14

From The President Home Sweet Home Since 1993, the MCB has been fortunate to have its headquarters in a beautifully restored Myers Park mansion set among the majestic oaks along Queens Road. The current Bar Center has been our not-sohumble home for these past 17 years, and it has served us well. While the Bar Center remains a beautiful facility, it is no longer adequate to serve the needs of our growing MCB family. Not only is the facility too small, it is in need of maintenance and repairs. The main structure is more than 80 years old. The roof and basement leak, the walls are mildewed, and the paint is peeling. The archaic electrical wiring was recently deemed to be in violation of Code requirements, Patrick E. Kelly, necessitating an approval of $30,000 to re-wire the facility. This MCB President unplanned expenditure is a stark reminder that our beautiful but aging facility could soon become a “money pit”. In my last President’s Letter, I pointed out that whether we need a new Bar Center is no longer the issue. The questions are where can we go and how soon? MCB leadership has talked about the need for more space since 2001. The current Bar Center has 5,900 square feet and approximately 20 parking spaces. This is less than half of the office space needed and barely 10% of the parking needed based upon a needs analysis completed by Gantt Huberman Architects. This analysis concluded that a new MCB Foundation Center will require a minimum of 15,000 square feet of office and meeting space, together with 150 parking spaces. This includes approximately 2,000 square feet for future expansion. Keep in mind that the Bar Center purchased 17 years ago housed 10 staff and served approximately 2,000 Bar members; our new Bar Center will house at least 16 staff and serve nearly 4,300 members. In early October, our federal and state court judges swore in approximately 140 new lawyers in a beautiful uptown ceremony. Most of the new admittees will be remaining in Mecklenburg County. It is clear from this that we cannot assume that the size of our legal community or the needs of our Bar will shrink, even in bad economic times. We must plan for and prepare for continued growth in our Bar. In a recent Bar survey, our members informed us that the two things they wanted most from the Bar were more continuing legal education (CLE) opportunities and more networking opportunities. A new Bar Center will enable us to meet both these needs. Because MCB’s current facilities are not equipped to handle many of the CLE’s we sponsor, MCB must rent space off-site. Off-site CLE’s are much more expensive and less profitable due to rental and catering charges. A new Bar Center with larger and more modern CLE space and parking will provide both greater convenience and significant cost savings. A new Bar Center will also enable MCB to provide space for meetings, alternative dispute resolution (ADR) facilities, and even social networking. An attorney lounge or coffee bar might be just the sort of thing this Bar needs to encourage and maintain collegiality and foster informal networking opportunities. The Future Bar and Foundation Center Committee, chaired by Pender McElroy and Bill McMullen, has considered both purchase and lease of existing facilities, as well as development of raw real estate. The Committee has explored sites in West Charlotte, East Charlotte, uptown and in areas near uptown. They continue to evaluate options. MCB will have to sell its current site before it can hope to relocate. In the current economy, it is a great time to buy but a tough time to sell. And even if MCB can sell its existing facility, we will need to borrow funds and/or raise funds to bridge the gap between the sale proceeds and the cost of new space. But it is only a matter of time before the right opportunity arises. When it does, the MCB, like any growing family, will need to move quickly to ensure that the MCB has adequate space for years to come. The new Bar Center is about serving the needs of you, our members. If you have thoughts, ideas or leads (for potential buyers or sellers), please call me, Pender McElroy, Bill McMullen or continued on page 13 2

November 2009

The Mecklenburg Bar News – Styling and Profiling By Tricia Moravan Derr, Chair The Mecklenburg Bar News is your best source of Mecklenburg County attorney and judge profiles, local CLE and networking opportunities, MCB committee and section updates, important election and courthouse announcements and so much more. The Communications Committee of the Mecklenburg County Bar (MCB) is in the process of reviewing all of the communication pieces we use to reach out and connect with our fellow MCB members. The weekly Bar Blast, for example, was recently updated to allow the Committee to better monitor the content MCB members are most interested in receiving. The MCB Web site, www.meckbar.org, has been revamped to have more timely, relevant information available in an easy-to-find format. Most recently, the Committee spent some time looking at the Mecklenburg Bar Times. This new stylish look and format you are seeing today is the result of many discussions, number crunching sessions and design revamps. As Communications Committee Chair, I hope you will enjoy the new style of the Mecklenburg Bar News. We worked with our vendors and contractors to produce an updated, eye-catching newsletter that does not add any additional expense to the production. If you are interested in being a part of the Communications Committee, please contact Committee Chair Tricia Derr at tderr@lincolnderr.com or MCB Director of Communications Rhea Kelley at rkelley@meckbar.org.

www.meckbar.org

Corporate Panel Reiterates Importance of Diversity On September 17, a panel of five corporate counsel from three local and two national organizations addressed an audience of 180 on how they hold outside counsel accountable for firm diversity. The panel members, assembled for a Continuing Legal Education program held by the Mecklenburg County Bar (MCB) and the Minority Corporate Counsel Association, included Kodwo Ghartey-Tagoe, Duke Energy Corporation; Alice Herald, Bank of America; Phil Wells, Compass Group; Mary Snapp, Microsoft Corporation; and Hinton Lucas, Dupont. Their message was clear- even in a recession, diversity continues to matter. Corporate legal departments have been able to wield their influence over outside counsel by insisting on tangible proof that diversity is a firm wide value. Often corporate clients request firm numbers on minority and female attorneys annually, if not quarterly. “Duke continues to request race and gender demographic information on its outside counsel,” said Kowdo Ghartey-Tagoe, Deputy General Counsel for Duke Energy Corporation. “We review this information on an annual basis with our selected vendors, and

clearly communicate our expectation to keep diversity a priority within the firm.” While Duke currently has no immediate repercussions for firms who fail to indicate annual diversity improvements, GharteyTagoe warns sterner times are coming. In 2008 Microsoft adopted a “pay per performance” policy. Seventeen of the company’s hired firms are eligible for a financial bonus based on measurable diversity achievements. Eligible firms can choose to report on the percentage of diverse attorneys working on Microsoft legal matters, or diverse attorneys in the firm’s U.S. offices overall. “We understand this effort is a community commitment, and do not expect our selected outside counsel to go it alone,” said Snapp. “In turn, each member of our legal department’s leadership team is responsible for ensuring the success of our hired firms. Five percent of the annual bonuses to our leadership team members will depend on the level of success the firms achieve in improving diversity and earning their bonuses from Microsoft.” Prior to the in-house panel, the co-chairs of the Law Firm and Legal Department

A panel of five corporate counsel shared their practices of encouraging diversity through hiring practices.

subcommittee of the Special Committee on Diversity, Rob E. Harrington and Felicia A. Washington, briefed attendees on the diversity initiatives the MCB has spearheaded. Through the Committee and the MCB’s efforts, there are established programs in the Charlotte region aimed at saturating the legal market with diverse attorneys. Harrington and Washington also highlighted the MCB’s efforts to ensure diversity is a part of the MCB’s annual goals and strategic plan.

The Rise of Corporate Compliance By Jonathan A. Vogel

Mortgage Fraud, Anti-Money Laundering & Identity Theft Prevention In recent years, the federal government has required businesses to do more and more to prevent wrongful conduct. New laws, regulations, and priorities require businesses to serve as the government’s frontline in combating fraud. As a result, many businesses need to be aware of the changing rules that require proactive compliance measures. This Article examines three areas of concern and offers tips for compliance.

Mortgage Fraud Federal prosecutors have charged mortgage fraud for several years using a litany of criminal statutes, including conspiracy, mail fraud, wire fraud, identity theft, aggravated www.meckbar.org

identity theft, and, if a financial institution was defrauded, bank fraud.1 However, on May 20, 2009, federal prosecutors were provided yet another tool to combat mortgage fraud with the enactment of the Fraud Enforcement Recovery Act of 2009 (FERA).2 FERA amended, among other things, the definition of “financial institution” to include a “mortgage lending business,”3 which enables the Justice Department to additionally charge bank fraud for schemes that defraud mortgage companies. As a result, federal prosecutors can now avail themselves of the 10-year statute of limitations for bank fraud in going after such schemes, as opposed to the 5-year statute of limitations for other frauds,4 giving prosecutors a little more time to develop and charge certain mortgage fraud cases. Considering Attorney General Holder’s congressional testimony discussing the November 2009

Obama Administration’s coordinated effort to target mortgage fraud and FERA’s authorization of appropriations of almost $250 million for fiscal years 2010 and 2011 to combat mortgage fraud, we are sure to witness an uptick in these types of investigations and cases. In order to avoid becoming victimized by mortgage fraud or, even worse, becoming implicated in a mortgage fraud scheme by virtue of an employee’s conduct, businesses should consider developing and implementing compliance measures. The starting point for the development of any compliance program should be the United States Sentencing Guidelines, which set forth minimum standards that businesses should incorporate into their programs in order to prevent and detect criminal conduct and to otherwise promote an ethical corporate continued on page 15

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Don’t Miss Your Chance to Attend the Most Exciting Law & Society Ever! By Pete Anderson & Carl Horn, Co-Chairs If you haven’t already registered for what promises to be a compelling Law & Society Luncheon, there is still time. The Luncheon is Thursday, November 19, at the uptown Hilton Hotel – and there is a great deal of excitement surrounding this year’s speakers: Jennifer Thompson-Cannino and Ronald Cotton, coauthors of the New York Times bestselling book, Picking Cotton. Those who have seen or heard our speakers on The Today Show, 60 Minutes, NPR’s Diane Rehm Show, or other media will attest to the power of their timely message. The deadline to register is Thursday, November 12, 2009. Not only is this a mustattend event, it is also an opportunity to receive one hour of CLE Ethics credit. The story behind Picking Cotton is a moving and dramatic one, beginning with the violent 1984 rape of a 22–year–old college student, Jennifer Thompson-Cannino, who was convinced that the man she picked out of a police lineup, Ronald Cotton, was her assailant. Tried, convicted, and sentenced to life imprisonment, Cotton served 11 years in North Carolina’s Central Prison in Raleigh – until DNA testing proved that he was innocent of the crime of which he stood convicted. But more than just another example of the potential unreliability of eyewitness testimony, or the conviction of an innocent man, this is a moving personal story of apology and forgiveness. Your Co-Chairs are grateful to those who have generously agreed to serve on this year’s

Law & Society Committee: Allain C. Andry, IV of Robinson, Bradshaw & Hinson; John H. Beyer of Parker Poe Adams & Bernstein; Joey H. Foxhall of Alston & Bird; Molly L. McIntosh of K&L Jennifer ThompsonGates; Daniel A. Cannino Merlin of Johnston, Allison & Hord; Valerie B. Mullican of Winston & Strawn; Kenneth B. Oettinger, Jr. of Womble Carlyle Sandridge & Rice; Fred P. Parker, IV of James McElroy & Diehl; George W. Sistrunk, III of Hamilton Moon Stephens Steele & Martin; Catherine E. Thompson of

McGuireWoods; and Henry B. Ward, III of Moore & Van Allen. The Law & Society Committee would also like to thank the Charlotte of School of Law for generously agreeing to cosponsor this Ronald Cotton exciting event. To order a firm sponsor table or reserve one or more tables (each seating 10), please call or e-mail Leah Reed at the Mecklenburg County Bar 704/375-8624 or lreed@meckbar.org. A form for reservations of less than ten is on the MCB Web site - www.meckbar.org.

2009–10 MCB MBF Law & Society Luncheon Registration $35/person Lunch only $75/person Lunch and 1-hour CLE credit Name ____________________________________________________________________________________ Company name ____________________________________________________________________________ Address __________________________________________________________________________________ E-mail ___________________________________________________________________________________ Phone _______________________________________Fax__________________________________________ I am enclosing a check payable to Mecklenburg County Bar TOTALING ______________________________________ Please mail your registration form and check by 11/12/09 to Law & Society Luncheon, 438 Queens Road, Charlotte, North Carolina 28207

Nominations Sought for Julius L. Chambers Diversity Champion Award Nominations are being sought for the Mecklenburg County Bar Julius L. Chambers Diversity Champion Award to be presented in the spring of 2010 at the McMillan Fund Dinner. The Diversity Champion Award recognizes an individual who embodies high ethical standards, unquestioned integrity, consistent 4

competence, and who champions diversity in the legal profession. Criteria may include one or more of the following: ■ Facilitates recruitment, hiring, retention, and promotion of diverse individuals in the legal profession. ■ Provides outstanding service and education to the community at large by unifying and November 2009

uplifting diverse people of all backgrounds. ■ Promotes ideals of diversity in the legal profession. Send your nominations by January 29, 2010 to Stephanie A. Marella, Diversity Coordinator, Mecklenburg County Bar, 438 Queens Road, Charlotte, NC 28207, or via email at smarella@meckbar.org. www.meckbar.org

A New Day for the December Luncheon Series The December Luncheon Series is moving! While these luncheons usually take place on the second Thursday of every month at First Presbyterian Church (200 W. Trade Street) from 12:15–1:15 p.m., the December

luncheon will be held Tuesday, December 8, 2009. The cost is still $10 per person ($11 if registering online). All remaining lunches will resume on the second Thursday of the month. We hope you will come and join your

MCB December Luncheon Registration Each luncheon is $10 per attorney Name ____________________________________________________________________________________ Company name ____________________________________________________________________________ Address __________________________________________________________________________________ E-mail ___________________________________________________________________________________ Phone _______________________________________Fax__________________________________________ I am enclosing a check payable to Mecklenburg County Bar TOTALING ______________________________________ For the 12/8/09 luncheon, please mail your registration form and check by 12/2/09 to MCB Luncheon Series, 438 Queens Road, Charlotte, North Carolina 28207

friends and colleagues in celebrating the holiday season. The Bar Luncheon Series Committee welcomes your suggestions for speakers and programs to offer in the future. For suggestions and/or more information about the luncheons, please contact Co-Chair Sally Higgins at sally@thehigginslawfirm.com, Co-Chair Doug Jarrell at djarrell@rbh.com, or Events Coordinator Leah Reed at lreed@meckbar.org.

Luncheon Series Schedule for 2009–2010 Speakers will be announced at www.meckbar.org and in your weekly Bar Blasts. Date December 8, 2009 February 11, 2010 March 11, 2010 April 8, 2010

Registration Deadline December 2, 2009 February 5, 2010 March 5, 2010 April 1, 2010

Meet Our Newest Team Member

The Luncheon Series Committee would like to thank Charlotte mayoral candidates Anthony Foxx and John Lassiter for speaking at the October Luncheon. Nearly 100 MCB members attended this popular luncheon. Be sure to join us in December .

www.meckbar.org

November 2009

Cecilia Henson joined the Mecklenburg County Bar staff in September 2009 as the Information System Coordinator. She is a recent graduate of ECPI College of Technology with an AAS in Information Technology and Security Management. Cecilia says, “The Mecklenburg County Bar offers challenging tasks each day, and I am looking forward to facing each one.” In her free time, Cecilia enjoys spending time with her family and traveling. She has two wonderful children, a daughter who is a freshman in college and a son who is a freshman in high school. Visit www.meckbar.org to meet the rest of your Bar staff, or better yet, stop in and say hello. The Bar Center is open 8:30 a.m. – 5 p.m. each day.

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Volunteer Lawyer Program SPOTLIGHT

Jerry Jernigan The November spotlight is on solopractitioner Jerry W. Jernigan of Jerry W. Jernigan, P.A. As both a business law and trusts and estates attorney, Mr. Jernigan works closely with the MCB’s Wills & Estates Program within the Volunteer Lawyer Program. Recently, he has helped many Habitat for Humanity homeowners with their estate planning needs. As a solo practitioner, the Bar appreciates the initiative he has shown in consistently serving MCB VLP clients in a pro bono manner. MCB VLP: Current Employer & Number of Years with that Employer?

JJ: Jerry W. Jernigan, P.A. for the last 11 years. Prior to that, I practiced with an uptown firm.

MCB VLP: Area of Practice/Expertise? JJ: I focus my practice in two areas: business law and estate planning & estate administration.

MCB VLP: Law school & Graduation Year? JJ: Duke Law School 1974 MCB VLP: How did you get involved and what are the cases like?

JJ: I can’t remember when I first learned about the Volunteer Lawyer Program, but it was many years ago! Since most of the matters I take are in the estate planning area, there is usually a predictable beginning and

predictable end to the engagement. I typically handle one pro bono matter at a time. I get involved when called by the VLP office or when an opportunity is presented through my church or a non-profit organization.

MCB VLP: How can the Mecklenburg County legal community help with similar cases?

JJ: Every lawyer can enjoy the chance to use his or her skills “for the good” without worry about financial reward. Many members of our Bar do that throughout the year by serving in various capacities with, or counseling, nonprofit organizations.

the very last paragraph, paragraph 23, had been tacked on to the form agreement. It did give the borrower those very rights. It was an embarrassing but good lesson about being thorough.

MCB VLP: What advice would you give

MCB VLP: What is the best advice you’ve

others?

received during your legal career?

JJ: Every time you are asked to give legal

JJ: The best advice I received was to “read paragraph 23”. When I was a young associate, my senior partner had our lender client on the telephone. The client’s borrower was insisting that he had the right to alter his obligations under the agreement and that the lender would be bound by the same. The lender didn’t believe it and I was instructed to pull the agreement to see who was right. I rushed to read it and read all but the last few paragraphs of boiler plate and reported to my partner (and he to our client) that the borrower was wrong. Then I discovered that

McArthur Insurance Agency, Inc.

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MCB VLP: What is the most challenging part of your career?

JJ: Not letting the frustrations of law practice get the best of me.

MCB VLP: What is your favorite part of your current job? what they need to do or get closer to where they want to be.

MCB VLP: Any other pertinent things you would like to share with the Mecklenburg County Bar and legal community? JJ: I am hopeful that we lawyers will emerge

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Jerry W. Jernigan

November 2009

If you are interested in becoming involved with the MCB VLP Wills & Estates Program, please contact Mary Jordan Mullinax at 704/375-8624 or mjmullinax@meckbar.org. We encourage solo and small firm attorneys to volunteer as the frequency of placement can be tailored to each attorney’s desired preference. www.meckbar.org

Wi-Fi Available in the Mecklenburg County Courthouse To better serve those who have business in the courthouse (i.e., litigants, attorneys, court counselors, etc.), the court has installed wireless access points for Internet service in the following courtrooms in the Mecklenburg County Courthouse: 6130, 6310, 6370, 8150, 8330, 8350, 8370 and 8390. This service is also available in other workspaces, such as the Family Court Services Center, the ADR Suite and Attorney Workroom on Level 6, and the Courtside CafĂŠ on Level 1. Justice Initiatives, Inc. contributed $5,000 to cover the ADR and Attorney Workroom installation, and the Juvenile Crime Prevention Council contributed $10,000 to cover the 8th Floor installation. The remaining expenses were paid with funds from the County budget.

MCB Receives Grant for Diversity Pipeline Program The Mecklenburg County Bar (MCB) has been selected as a 2009 Diversity Dollars grant recipient by the Minority Corporate Counsel Association (MCCA) for furthering the mission of increasing diversity within the legal profession. The grant was specifically awarded to the Lunch with a Lawyer program, an MCB diversity pipeline program designed for middle school students. Since 2006, Lunch with a Lawyer has provided more than 270 eighth-grade Nearly 300 8th grade students have participated in the students from diverse racial, ethnic, and Lunch with a Lawyer program. Students are paired with socioeconomic backgrounds the attorney mentors for a year of sharing and learning. opportunity to connect with an attorney mentor. The program exposes participating stage of their career. MCB pipeline programs students to a career in the legal profession engage high school and undergraduate while cultivating a beneficial relationship with students in the annual Diversity Day program, a positive role model. The hope is that by law students in the Charlotte Legal Diversity connecting the students with attorneys who Clerkship, and licensed practitioners through mirror their gender, race, or ethnicity the the MCB General Counsel and Managing students will become inspired and empowered Partners Diversity Initiative Call to Action. to take on similar career paths. The MCCA awarded a total of $25,000 in The Diversity Dollars grant will offset costs support of diversity programming in 2009. Each associated with the Lunch with a Lawyer new applying organization was limited to a $5,000 mentor orientation, the Lunch with a Lawyer request and evaluated on the quality of the Kickoff Luncheon, and a mock-trial and tour proposal submitted, the need for financial assisof the Mecklenburg County Courthouse tance, and the measurable outcome produced. hosted by Judge Albert Diaz. The MCB and the Special Committee on The MCB diversity pipeline is established to Diversity are grateful for the funding awarded support future and practicing attorneys in every to this important program.

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www.meckbar.org

November 2009

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Fall Brings Changes for the Young Lawyers Division By Amy B. Foxhall, Chair The Mecklenburg County Bar Young Lawyers Division (YLD) is excited to announce two new changes. The first big change, that you may have already noticed, is our name change. The young lawyers recently changed from a MCB Section to a MCB Division. This name change allows the YLD to set itself apart from the practice area specific sections. Check out the new YLD page on www.meckbar.org under the Get Involved tab. The second big change is the formation of six new committees with six new committee chairs. The new YLD committees are as follows: Community Service Committee - organizes and facilitates public service opportunities for YLD members. Such public service opportunities include providing meals for the needy, participating in the Giving Tree, clothing drives and other like activities. Amanda Smiley from Cranfill, Sumner and Hartzog, LLP is the 2009-2010 Community Service Committee Chair. Education Committee - facilitates and organizes activities which seek to educate the Mecklenburg County community and the Mecklenburg County Bar. Such activities include the Big Bad Wolf Project, Lawyers Teaching Justice, Law Explorers, the

Academic Internship Program, CLEs and other like activities. Amy Hunt from Horack Talley is the 2009-2010 Education Committee Chair. Membership Committee - works to increase YLD membership and insure that the YLD is meeting the needs of its members. This committee also organizes and facilitates the Young Lawyer of the Year Award and the new lawyer swearing in ceremonies. Libby James from Horack Talley is the 2009-2010 Membership Committee Chair. Social Committee - organizes quarterly socials for the YLD members, and hosts other events and gatherings which promote the interests of the YLD members. Tony Taylor from Alston & Bird, LLP is the 2009-2010 Social Committee Chair. Legal Assistance Committee - organizes and facilitates projects which provide legal advice or assistance to the citizens of Mecklenburg County and/or North Carolina as a whole. Such activities include Ask-A-Lawyer Day, NCBA’s 4-All Service Day and other like activities. Lauren Vaughn from Horack Talley is the 2009-2010 Legal Assistance Committee Chair. Connectivity Committee - ensures that the YLD members are actively participating in the

goals and missions of the MCB. The committee works to bridge any gaps between the YLD and the MCB and facilitate the YLD as a stepping stone for young lawyers’ involvement in the MCB. Carrie Mansfield from the Charlotte School of Law is the 20092010 Connectivity Committee Chair. If you are interested in becoming involved in the YLD or any of the above listed committees, please contact Amy Young at the Mecklenburg County Bar at ayoung@meckbar.org or 704/375-8624 or any of the above listed committee chairs.

Your Help Needed Be on the lookout for upcoming holiday sponsorship opportunities through the YLD Community Service Committee.

Did you know... The MCB has a committee dedicated to increasing diversity in the Charlotte legal workforce.

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November 2009

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More than 300 family members, guests and sponsor attorneys attended the Fall Swearing-In ceremonial court session.

Fall 2009 Swearing-In Ceremony Congratulations to the 131 new attorneys who were sworn in on October 1, 2009 at the Marriott City Center! Special Superior Court Judge Albert Diaz presided over the state portion of the ceremonial court session, and Chief United States District Court Judge Robert J. Conrad Jr. presided over the federal portion of the ceremonial court session. Young Lawyers Division Chair Amy B. Foxhall and Mecklenburg County Bar President Patrick E. Kelly helped congratulate the newly sworn in. The Young Lawyers Division thanks its sponsors for this event; United States Western District of North Carolina, Special Counsel, and File Vault. Please welcome the following attorneys to the North Carolina State Bar: Derek Paul Adler DeVore, Acton & Stafford, PA University of North Carolina School of Law Elias W. Admassu Hedrick Gardner Kincheloe & Garofalo, LLP University of North Carolina School of Law Stephen Kyle Agee James C. Hardin III, PLLC University of South Carolina School of Law David Michael Alban Alston & Bird LLP University of California at Berkley School of Law Stephanie Michelle Davis Albright University of Richmond, T.C. Williams School of Law Alonzo McAlpine Alston Self-Employed Charlotte School of Law Marc Stephen Asbill Charlotte School of Law Benjamin David Austrin-Willis North Carolina Business Court Wake Forest School of Law Leslie Ann Baggatta Baggatta Law Frim, PLLC Charlotte School of Law www.meckbar.org

LaTosha R. Barnes Poyner Spruill LLP Wake Forest School of Law Robert Locke Beatty McGuireWoods LLP University of Virginia School of Law Erin Theresa Bray PricewaterhouseCoopers Louisiana State University Law Center Adam Mark Bridgers Huron Consulting Group Charlotte School of Law Daniel James Brown Charlotte School of Law Jessica Lyn Brumley Williams & Connolly LLP Duke University School of Law Sarah Abigail Byrd US Department of Justice, EOIR University of North Carolina School of Law Gretchen L. Caldwell Legal Services of Southern Piedmont Charlotte School of Law Samuel Wallace Carnwath III Katten Muchin Rosenman LLP University of South Carolina School of Law

Justin Tyler Carpenter K&L Gates University of North Carolina School of Law Kimberly Jane Carter Richard A. Peniston & Associates, PA Charlotte School of Law Jennifer Gwynne Case William & May School of Law James Raymond Cass Robinson, Bradshaw & Hinson, PA University of Virginia School of Law Darcel Chandler Charlotte School of Law Joy McMurry Chappell Fosbinder & VanKampen, PLLC Charlotte School of Law Christopher Bradley Clare Charlotte City Attorney’s Office Duke University School of Law Brian James Conley Mecklenburg County Public Defender’s Office Wake Forest School of Law John David Costa McGuireWoods LLP Emory University School of Law continued on page 10

November 2009

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Swearing-In continued from page 9

Matthew Barron Covington Cranfill Sumner & Hartzog Elon University School of Law Matthew Thomas Covington James, McElroy & Diehl, PA Campbell University, Norman Adrian Wiggins School of Law James Shelton Derrick Womble Carlyle Sandridge & Rice, PLLC University of Georgia School of Law Fred William DeVore IV The Hamel Law Firm, PA Elon University School of Law Amrita Kaur Dhaliwal Wake Forest School of Law Christopher James Dickson Cadwalader, Wickersham & Taft, LLP New York University School of Law Sean Thomas Dillenbeck University of Georgia School of Law Benjamin Carlyle Downing Chase College of Law at Northern Kentucky University Thomas Russell Ferguson III Georgetown University Law Center Preston Brooks Fuller Erdman, Hockfield & Leone LLP University of South Carolina School of Law Rudolph Clarence Gabriel Jr. Self-Employed University of Iowa College of Law

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(Below) Each new attorney was introduced to the Bar by a sponsoring attorney.

Michael P. Gaffney Mayer Brown LLP Washington & Lee University School of Law Andrea Marie Gervais Alston & Bird LLP Vanderbilt University Law School Alicia Charlene Gibson University of South Carolina School of Law Melissa Scott Gilbert McGuireWoods LLP Ohio State University College of Law Brittni Leticia Goldman McGuireWoods LLP University of Virginia School of Law Kara Korea Goodman Charlotte School of Law Senitria Arnyce Goodman Cloud & Williams, PLLC Appalachian School of Law Courtney Nicole Ellis Guin Charlotte School of Law James Bryan Hall Jr. University of South Carolina School of Law Luke Barkley Hardison Carnfill Sumner & Hartzog Campbell University, Norman Adrian Wiggin School of Law Mark Joseph Hanson Johnston, Allison & Hord, PA University of North Carolina School of Law

November 2009

Shaun William Hassett Alston & Bird LLP University of Dayton School of Law John Alexander Heroy James, McElroy & Diehl, PA University of North Carolina School of Law Melissa Grace Holer Mississippi College School of Law Richard Joseph Holmes Richard L. Robertson & Associates University of Maine School of Law Amy Louise Norwood Holthouser McIntosh Law Firm, PC Elon University School of Law Hannah Elizabeth Honour Mercer University School of Law Travis James Iams Alston & Bird LLP University of Georgia School of Law Mojahed (Mo) Omar Idlibi Charlotte School of Law Thomas Carroll Jeter III Elliott Law Firm University of South Carolina School of Law Mark S. Jetton Jr. Jetton & Meredith, PLLC Elon University School of Law Michael Kabakoff Self-Employed University of Michigan Law School James Wyatt Kendall Southern Environmental Law Center University of North Carolina School of Law Aisha Khan North Carolina Central University School of Law William C. Kinney Moore & Van Allen PLLC University of South Carolina School of Law Erica Rae Knott Washington & Lee University School of Law Kelly Ann Koeninger Robinson, Bradshaw & Hinson, PA University of Virginia School of Law Matthew Paul Latrick Moore & Van Allen PLLC William & Mary School of Law Susan Pepper Lagana University of North Carolina School of Law Lydia Bree Laughrun Mecklenburg County Public Defender’s Office University of Richmond, T.C. Williams School of Law Mia Diane Lindquist Hedrick Gardner Kincheloe & Garofalo, LLP University of North Carolina School of Law www.meckbar.org

Cherie Nannette Long North Carolina Central University School of Law Steven Andrew Lucente Elon University School of Law Michael Leon Martinez Grier Furr & Crisp, PA University of North Carolina School of Law Meghan McClure Moore & Van Allen PLLC University of North Carolina School of Law Emily Mairi McIntosh McGuireWoods LLP University of South Carolina School of Law David Wilson McPhail E. Fred McPhail, Jr., Attorney at Law, PA Campbell University, Norman Adrian Wiggins School of Law Viral Vikram Mehta Wake Forest School of Law Jeremy Daniel Melville Spencer & Spencer, PA University of South Carolina School of Law Eric S. Meredith Jetton & Meredith, PLLC Elon University School of Law Angelo Matthew Metaxatos University of Miami School of Law Lani Miller Self-Employed Southwestern University School of Law Felicia Louise Wright Mitchell McGuireWoods LLP Georgetown University Law Center Amanda Kay Moore Reginald L. Yates Thomas M. Cooley Law School Clinton Funderburk Moore Everage Law Firm Elon University School of Law Jeffery James Morris University of South Carolina School of Law Jordan Paul Nabb Appalachian School of Law Lauren O. Newton Hedrick Garner Kincheloe & Garofalo, LLP University of North Carolina School of Law Meghan Ione Nicholson Smith Law Offices Charlotte School of Law Peter Phelps Nicholson Wake Forest School of Law Catherine Frances Noyes K&L Gates University of South Carolina School of Law www.meckbar.org

Phavady Panyanouvong Mecklenburg County Public Defender’s Office North Carolina Central University School of Law Winona Ann Pilkington Horack Talley Charlotte School of Law Meredith Anne Pinson McGuireWoods LLP Wake Forest School of Law Amanda Grace Presson United States Army JAG Corps North Carolina Central University School of Law Sheena ReNae Pulley Mississippi College School of Law Ray Wallace McCord Rayburn Summa, Additon & Ashe, PA University of North Carolina School of Law Lauren A. Rice Mayer Brown LLP Pepperdine University School of Law Philipp Constantin Richter Case Western Reserve University School of Law Devire M. Robinson Smith Moore Leatherwood LLP University of Pennsylvania Law School Sarah Katherine Robinson Wishart, Norris, Henninger & Pittman, PA Elon University School of Law Susan Courtwright Rodriguez U.S. District Court Western District of North Carolina George Mason School of Law Patrick Lum Ryan Green Law University of Georgia School of Law Steven David Sadler Self-Employed Charlotte School of Law Kellen Ruth Sibley Charlotte School of Law Avery Ann Simmons Bradley Arant Boult & Cummings LLP Catholic University – Columbus School of Law Corby Collins Smith Allen Law Firm Charlotte School of Law Thomas Andrew Smith University of Memphis School of Law Krista Ann Stallard Charlotte School of Law Christian Hart Staples Shumaker, Loop & Kendrick, LLP Campbell University, Norman Adrian Wiggins School of Law November 2009

Stephanie Kay Hodgin Steiger McAngus Goudelock & Courie, LLC University of North Carolina School of Law Meredith Brewer Taylor University of Texas School of Law Matthew Felton Tilley Robinson, Bradshaw & Hinson, PA University of North Carolina School of Law Elizabeth Zwickert Timmermans McGuireWoods LLP Notre Dame Law School Allen Torres The Oracle Law Firm LLC Charlotte School of Law Brian Patrick Troutman McGuireWoods LLP University of North Carolina School of Law John Paul Tsahakis James, McElroy & Diehl, PA University of North Carolina School of Law Emily May-Lee Tseng Dozier, Miller, Pollard & Murphy, LLP University of North Carolina School of Law Bobek Vazeen McGuireWoods LLP Wake Forest School of Law Christine W. Volponi Charlotte School of Law Matthew Todd Wakefield Ballard, Rosenburg, Golper & Sovitt LLP University of San Diego School of Law Joan Marie Waldron Alan Gordon Immigration Law Charlotte School of Law Gregory Fredrick Ward Jr. Charlotte School of Law Aaron Charles Weiner Cadwalader, Wickersham & Taft, LLP University of Virginia School of Law Amanda Ruth Whiffing Premier, Inc. Indiana University School of Law Virginia E. Worthy K&L Gates Vanderbilt University Law School Cary Nicholas Yacabucci The Angel Law Firm Charlotte School of Law Andrew Tollison Yonchak Davidson College University of Georgia School of Law Karen Marie Youmans Charlotte School of Law Virginia Evans Younger McGuireWoods LLP University of Texas School of Law 11

LRS Offers a Service to the Public and a Chance for Leadership Opportunities The Mecklenburg County Bar Lawyer Referral Service (MCB LRS) has been in existence since the 1950s. It is the Bar’s first and most active service dedicated to the public. The MCB LRS consists of more than 60 Panel members and a Committee of peers dedicated to ensuring the best quality of service to the public and the panel members. Through LRS Committee, Panel–and staff collaboration, the MCB LRS has successfully weathered many challenges over its 50 + years in existence, both financially and structurally. In 2006, for example, Panel members were experiencing an overwhelming number of noshows for LRS appointments. At that time, the $50.00 consultation fee was collected at the

initial meeting, allowing for less accountability from the clients between the time the referral was made and the consultation took place. After discussions by LRS Committee members and a survey of Panel members, the Committee recommended collecting the initial consultation fee up front, increasing client accountability. It was this collaboration between LRS Panel members, Committee members and staff that ensured a continuation of quality service for everyone involved. Similarly, under the leadership of Committee Co-chairs David Strickland and Lauren Vaughn, the 2009-10 LRS Committee is creating task forces that focus on individual components of a successful lawyer referral

Chill Out with a Friend... at the 2009 Bar Holiday Party We encourage you to bring a date, spouse, or friend to our annual Bar Holiday Party on Thursday, December 10, 2009, at Byron’s South End, 6 p.m. - 9 p.m. $20 admittance fee includes two drink tickets and heavy appetizers. Deadline to register is December 3, 2009. For more information, please contact Leah Reed at lreed@meckbar.org or 704/375-8624, ext. 114. Register online, or complete and return this registration form.

2009 MCB Holiday Party Registration Cost is $20 per person Name ____________________________________________________________________________________ Company name ____________________________________________________________________________ Address __________________________________________________________________________________ E-mail ___________________________________________________________________________________ Phone _______________________________________Fax__________________________________________ I am enclosing a check payable to Mecklenburg County Bar TOTALING ______________________________________ Please mail your registration form and check by 12/3/09 to MCB Holiday Party, 438 Queens Road, Charlotte, North Carolina 28207

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November 2009

service, including marketing initiatives, LRS guideline revisions, and protocols for ensuring both attorneys and clients are satisfied. The task forces meet on as-needed basis. The full Committee meets every other month. If you are interested in becoming involved in a leadership role, please consider participating in the Lawyer Referral Service as a Panel or Committee member. Each Committee member is asked for a three-year commitment and then is expected to rotate off the Committee. This pattern ensures consistent diversity on the Committee, and provides the Committee members with a tangible time limit for their service. LRS Committee Co-chairs, David Strickland, david@dhstricklandlaw.com 704/531-2374, or Lauren Vaughn, lvaughn@horacktalley.com 704/377-2500, or LRS Coordinator, Mary Jordan Mullinax, mjmullinax@meckbar.org 704/375-8624, would be happy to speak with you and share additional information.

Editorial Policy The Mecklenburg Bar News accepts editorial and advertising material of general legal interest to the practicing Bar of the 26th Judicial District. The implicit purposes of the newsletter, website, and related methods of communication are to educate members of the Mecklenburg County Bar and to create and maintain shared communication with its members. The Communications Committee reserves the right to accept, reject, or edit all material. DISCLAIMER Efforts will be made to provide information of interest that is timely, accurate, and relevant to the legal community. The Mecklenburg County Bar is not responsible for misprints, typographical errors, or misinformation in The Mecklenburg Bar News. The views and opinions are not necessarily those of the 26th Judicial District Bar. Communications Committee: Tricia Derr, Chair, Judge Bob Johnston, Mike Daisley, Alan Edmonds, Will Esser, Jon Goldberg, Allison Karp, Charles Keller, Rhea Kelley, John Lassiter, Phillip Lewis, Nancy Roberson, Michael Shor, Russ Traw

www.meckbar.org

2010 Bar Leadership Institute

President’s Letter

A Year of Planning and Serving By J. Melissa Woods The Bar Leadership Institute (BLI) has been integral in training leaders for the Mecklenburg County Bar (MCB), the Mecklenburg Bar Foundation (MBF) and our community since 2001. BLI graduates have gone on to become successful entrepreneurs who open their own practices, run for political and judicial offices, and serve the MCB and community. Graduates include Patrick E. Kelly, 2009-10 MCB president, the Honorable Tyyawdi Hands, and Charlotte mayoral candidate Anthony Foxx. All agree that participation in this program was a factor in developing their leadership skills. The MCB and MBF have supported the BLI, through financial and staff support, since its first class graduated in 2002. As the program nears its 10th anniversary, the BLI Committee recommended a year of “BLI Service” by the 2009 graduating class while the Committee steps back to evaluate the structure of the program and assess how it can best serve the Bar and the greater community. To that end, the BLI will not have an application process for a 2010 class. This resolution was not reached lightly by the Committee and the boards of the MCB and MBF. Two factors greatly contributed to this outcome. First, this year’s economic environment would prevent many firms that traditionally send candidates to the program from participating. Second, the 10-year anniversary mark seems like an opportune time to take stock of the program. The BLI planning process, however, is rapidly paced. As one class graduates in May, it’s time to start recruiting

in July for the next class. This timeline presents challenges to evaluating the program, reflecting upon suggestions and implementing potential improvements while still working with an active class. Instead, the Committee, along with the boards of the MCB and MBF, will study all that the BLI has accomplished and consider if there are ways to improve and strengthen the program for its participants and the community. The Committee will reach out to the more than 120 program graduates for ideas and support, study leadership programs from other bars, and supervise the service project started by the 2009 graduating class. While the Committee and boards are evaluating the program, the BLI class of 2009 will explore effective ways to transform MCB members into active participants in the Bar. The class will contact MCB members who have traditionally been underrepresented in Bar activities and develop a plan to help reenergize lagging participation. Afterwards, they will bring their findings and suggestions to the Board of Directors for further guidance and direction. This is the first time in BLI history that a graduating class has initiated such an endeavor. The absence of a 2010 class is not the end for the BLI. This will be a year of planning, evaluation and service. There is still tremendous interest and support for this program. We hope to begin accepting applications in the early summer of 2010, giving the Committee ample time to review candidates and select those who will continue the tradition started by the Bar Leadership Institute inaugural class.

Did you know... The MCB Volunteer Lawyer Program provides members meaningful pro bono opportunities in the community. www.meckbar.org

November 2009

continued from page 2

Nancy Roberson. If you would like a Bar Center (or even a conference room) named after you, or know someone who would, and is willing to pay handsomely for the privilege, let us know. If you would like to serve on the Bar Center Committee, we could use you. The realization of a new Bar Center will necessarily require a cooperative effort of not simply the MCB and MBF leadership and staff, but the majority of our members. The prospect of purchasing or building a new Bar Center is both daunting and exciting. Our hope is that it will be our professional “home” for the next 20 years, so it is worth doing it right. With your help and support we will.

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MCB Survey continued from page 1

Satisfaction with the Legal Profession Professional Satisfaction Based on Hours Worked Per Week

Are you satisfied with your job?

4 3 2 1

Less than 40

40-49

50-59

60-69

70 or more

Hours worked per week Survey respondents ranked job satisfaction on a scale of 1- Not Satisfied to 5- Completely Satisfied.

The survey results concerning respondents’ satisfaction with the legal profession are consistent with the findings of other national studies. Twenty-one percent indicated they are completely satisfied with their selected profession. However, only 15 percent of respondents indicated they are completely satisfied with their specific job. The three factors most likely to improve the quality of respondents’ professional satisfaction are increased financial compensation, a greater sense of appreciation by their employer, and a reduction in billable hours.

Survey results show a consistent increase in employer satisfaction when weekly work hours decrease (see graph). When billable hours decrease, respondents say they have more control over their work and personal lives, and feel valued by their employer. Age and experience greatly affect lawyer satisfaction. Respondents ages 25-35 say they are less likely to be with their current employer in five years. Respondents under age 45 are most interested in becoming in-house counsel within the next five years compared to staying with a firm or working in public service. Ten percent of respondents under the age of 45 do not anticipate practicing law in the next five years. However, respondents over age 46 say they have greater control over their work and personal lives, and feel valued by their employer.

Strategic Results The MCB leadership and staff have developed a strategy to effectively incorporate survey results into the MCB strategic plan. Various taskforces reviewed key findings and recommended organizational priorities. MCB committees and sections provided feedback on challenges and opportunities they will face in the next five years. The strategic planning process also integrated recommendations from the American Bar Association’s (ABA) MCB Operational Review, conducted in the fall of 2008. “Given our growing membership and changing professional climate, it is imperative that we step back and thoroughly look at the

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November 2009

Bar’s future,” said Bob Dortch, co-chair of the Strategic Planning Committee and MCB vice president. “The survey results assist us in identifying how our legal community is adapting to the current market and how the MCB can serve our membership.” The strategic planning process has led to six initial areas of focus: evaluate and improve membership services; governance and operational efficiency; assess and augment public services; utilize new and improved technology to enhance Bar communications; and evaluate the future location or expansion of the Bar Center. The MCB recognizes that in order to better respond to its members, it requires a strategic guideline, not a mandate. Therefore, the Strategic Planning Committee will continue to review and refine MCB longterm goals on an annual basis. The requests of our members reflected in the POP survey are not solely limited to future plans. In fact, the Bar immediately responded to some of the feedback. Sixty-five percent of the POP survey respondents prefer to receive MCB updates through e-mail Bar Blasts and the MCB Web site. In recent months, the layout and content of our Bar Blasts received a face lift, our Web site was overhauled, and we will begin webcasting selected CLE programs. The Bar will bring 95 percent of its website updates in-house, and has hired a full-time information services coordinator. Additionally, members visiting the Bar Center will have wireless access to the internet.

Future Surveying The MCB will continue refining its membership surveying processes, and hopes to launch another membership survey to gather data absent in POP results. Questions will be more targeted and responses will be formatted to provide detailed cross analyses. Electronic surveying applications will be streamlined to prevent technological barriers. The MCB will publicize the survey through multiple avenues to increase the survey response rate. While some insights into the MCB membership were gained through the 2008 POP survey, the MCB recognizes the need to refine its surveying procedures for improved data. Through this vital feedback, programs and services will continue to be adapted to meet the needs of the growing and changing legal profession in Mecklenburg County. www.meckbar.org

Corporate Compliance continued from page 3

culture.5 An effective compliance and ethics program can serve as an important mitigating factor when prosecutors are deciding whether to criminally charge a business for the acts of an employee.6 Mortgage lending businesses, and other companies that work in the mortgage industry, should immediately adopt, among other things, policies and procedures regarding hiring, training, and supervision, as well as appropriate responses to the detection of improper conduct.

Anti-Money Laundering Money laundering is the act of concealing the origin of funds that were obtained by illegal means.7 Criminals “launder” their money in an attempt to legitimize it and to avoid detection. There are numerous ways to conceal the origin of funds, and they may not always involve banks. As a result, the federal government has enacted laws intended to detect and prevent different types of businesses from being used for money laundering. The USA PATRIOT Act of 20018 significantly amended the Bank Secrecy Act by requiring more businesses to develop anti-money laundering (AML) programs, including certain insurance companies and jewelry dealers; casinos; and money service businesses (MSBs), such as grocery chains and other businesses that offer check chasing, money transfers, and money order services. AML compliance continues to be an important tool for the federal government in the fight against narcotics trafficking, fraud, and even terrorism. A covered business must develop and implement an effective AML program that is reasonably designed to prevent the business from being used to facilitate money laundering and the financing of terrorist activities.9 At a minimum, the program must include: (1) the development of policies, procedures, and internal controls that are sufficient to ensure compliance with AML requirements, such as filing reports, maintaining records, and responding to law enforcement requests; (2) the designation of a compliance officer with responsibility for reporting and record keeping; (3) the provision of relevant employee education and training; and (4) the establishment of a plan www.meckbar.org

for independent review of the AML program.10 Government auditors will examine whether the entity’s AML program is tailored to a risk assessment of the business and whether the program is effective. Even where the auditors find shortcomings in an AML program, a business can avoid or mitigate its legal exposure by demonstrating that its plan was reasonably designed and implemented to not only detect but also to prevent money laundering.

fraud and other financial crimes. Jonathan A. Vogel is a partner at McGuireWoods LLP in the government investigations practice group. He provides companies with regulatory compliance advice and assists with government audits and investigations. Prior to joining McGuireWoods, Jonathan served in the federal government, including as a prosecutor, regulator, and congressional investigator. He can be reached at vogel@mcguirewoods.com or 704.373.8858.

Identity Theft Prevention

1

Although the problem of identity theft has existed for many years, the federal government only recently required certain types of businesses to develop identity theft prevention programs. The “Red Flags Rule,” as it is known,11 covers banks, credit unions, and finance companies, as well as businesses such as utilities, health care providers, telecommunications companies, and other businesses that regularly provide services and bill customers later.12 A covered business must develop and implement a written program that is designed to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account.13 At a minimum, the program must include reasonable policies and procedures (1) to identify relevant Red Flags (that is, warning signs) of identity theft for the covered accounts; (2) to detect those Red Flags; (3) to respond appropriately to any Red Flags; and (4) to ensure the program is updated periodically to reflect changes in risks.14 The Federal Trade Commission’s enforcement of the Red Flags Rule, which will begin Nov. 1, 2009 for non-bank entities,15 which began on August 1, 2009, will likely focus on those businesses victimized by, or used by others to commit, identity theft. To avoid or mitigate liability, covered businesses should immediately assess their risks for identity theft and develop a prevention program. The federal government is requiring more from the private sector at a time when businesses can hardly afford to be distracted from their core missions. But rather than deny the reality of the situation, businesses would be well served by taking proactive compliance measures to, at the very least, satisfy minimum requirements intended to combat November 2009

See 18 U.S.C. 371 (conspiracy), 1341 (mail fraud), 1343 (wire fraud), 1028 (identity theft), 1028A (aggravated identity theft), and 1344 (bank fraud). 2 Public Law No. 111-21. 3 See 18 U.S.C. 20. 4 Compare 18 U.S.C. 3282(a) (five years) with 3293 (ten years). 5 See U.S.S.G. § 8B2.1 6 See http://www.usdoj.gov/opa/documents/corpcharging-guidelines.pdf (last accessed June 23, 2009) (taking into account whether the business has a compliance program “established by corporate management to prevent and detect misconduct and to ensure that corporate activities are conducted in accordance with applicable criminal and civil laws, regulations, and rules.”) 7 See http://www.usdoj.gov/criminal/afmls/docs/ ml2001.pdf (last accessed June 23, 2009). 8 Public Law 107-56. 9 See 103 C.F.R. part 103, subpart I. 10 Id. 11 The Red Flags Rule, issued in 2007 under the authority of section 114 of the Fair and Accurate Credit Transactions Act of 2003, was a joint rulemaking involving several federal agencies. 12 See 16 C.F.R. § 681.2(b)(5) (defining “creditor”). 13 See 16 C.F.R. § 681.2(d). 14 Id. 15 On August 27, 2009, the American Bar Association (ABA) filed a lawsuit against the FTC in the U.S. District Court for the District of Columbia that challenges the applicability of the Red Flags Rule to practicing lawyers. Then, on September 23, 2009, the ABA moved for partial summary judgment and requested a hearing by October 23rd. As of the writing of this Article, that lawsuit remains pending.

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The Mecklenburg Bar News 11/09