North Carolina Lawyers Weekly July 2023

LM PORTAL

New and improved ways to manage your policy and easily get the documents you need.

• Pay your bill online

• Download a Declaration Page

• Get confirmation of insurance

• Make policy changes

• Add attorneys and remove attorneys

LM APP

Now available on your smartphone

• All the conveniences of the portal - on the go!

• Manage your account and make changes to your policy in a convenient app format

• Download the app on your iPhone or Android device – Lawyers Mutual NC in the app store

• Get CLE hours on your time, and wherever you want

• FREE for Insured attorneys and paralegals/staff

• Choose the topics relevant to your practice

IN PRINT. IN DIGITAL. IN PERSON. Expertly Focused On Today’s Legal Professional.

130 North McDowell Street, Unit B, Charlotte, NC 28204 (704) 377-6221 • FAX(704) 377-4258

E-mail: service@bridgetowermedia.com • Circulation: 1-877-615-9536

Managing Director/Publisher

Susan A. Bocamazo, Esq., sbocamazo@lawyersweekly.com

n EDITORIAL Editor

Ross Chandler rchandler@lawyersweekly.com

Digital Media Manager

Scott Baughman sbaughman@mecktimes.com

n CIRCULATION

1-877-615-9536

service@bridgetowermedia.com

n ADVERTISING

Advertising Account Executive

Sheila Batie-Jones sbatie-jones@nclawyersweekly.com

NCLAWYERSWEEKLY

North Carolina Lawyers Weekly [ISSN10411747] [USPS 002-904] is published Monthly with General Statewide Circulation by North Carolina Lawyers Weekly, 130 North McDowell Street, Unit B, Charlotte, NC 28204

Periodicals postage paid at Charlotte, North Carolina 28228-9998.

POSTMASTER - Electronic Service

Requested. Send address changes to: North Carolina Lawyers Weekly,

n ACCOUNTING & ADMINISTRATIVE

Business Manager

Kelly Olson kolson@bridgetowermedia.com

n ART & PRODUCTION

Creative Director

Melanie Bingham

Project Management

Jordan Mazuranic

Production Specialist

John Reno Director of Production Services

Bradley Redmond

Subscription Services, P.O. Box 1051, Williamsport, PA, 17703-9940

To place orders, temporarily stop service, change your address or inquire about billing: Phone: (877) 615-9536

Email: service@bridgetowermedia.com

To submit subscription payments, mail: Subscription Services P.O. Box 1051 Williamsport PA 17703-9940

©2023 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

BridgeTower OpCo, LLC d/b/a North Carolina Lawyers Weekly Media is an equal opportunity employer.

COVER STORY :

p4 |Pandemic ushers in new age of lawyering

OPINIONS :

p15 | A roundup of North Carolina court decisions

ICONS & PHENOMS :

p21 | Sixteen attorneys recognized for distinguished leadership in law

VERDICTS & SETTLEMENTS :

p27 | The latest results on North Carolina legal action

LAWYERS IN THE NEWS :

p29 | New associations, promotions, honors

CAROLINA PARALEGAL NEWS :

p34 |Paralegal pro bono work more popular than ever

In recognition of the ever-growing importance of delivering news in the most engaging way, I am pleased to announce the launch of the new and improved nclawyersweekly.com website. The magazine's team has been hard at work over the past few months to create a more user-friendly and informative platform for our readers.

One of the more exciting aspects of the new website is its updated design. Great care has been taken to create a modern and visually appealing layout. From the homepage to the individual article pages, every aspect of the site has been carefully crafted to provide an enjoyable reading experience.

But it's not just the aesthetics of the site that have been improved. Several technical and functional upgrades were made to make your experience on the site even better.

For starters, the new website is fully optimized for mobile devices. With more and more people accessing the internet from smartphones and tablets, it's important that the site is easy to use and navigate on these devices. The site is fully responsive, meaning that it will adjust its layout and features to fit the screen of any device you use. Whether you're reading an article on your desktop computer or scrolling through the site on your phone, you'll have a seamless and enjoyable experience.

Chandler

Navigation also has been simplified and streamlined, making it easier to find the articles and topics you're most interested in. Load times have been optimized. The redesign also makes it easier to share articles, sign up for our newsletter and engage with our social media channels.

Of course, the content of the site is just as important as its design and functionality. We will continue to update and expand our articles to provide informative and engaging content.

I hope you enjoy the new online experience. Please reach out to me at rchandler@lawyersweekly.com with any feedback you would like to share.

The old way of practicing law is dead, and the coronavirus killed it.

If that sounds like hyperbole, ask around. Better yet, look around your local law office. You’ll find fewer staff members congregating at the water cooler, fewer attorneys discussing life and the law in the hallways, and more unoccupied desks than you would have found in 2019. Despite these, most firms have maintained their lawyer count and many have added attorneys and opened new locations.

Some firms, particularly smaller ones, have permanently adopted wholesale changes caused by a pan-

Pandemic ushers in new age of lawyering

Working from home the new norm

demic that required a new normal, whereas others have complied out of necessity while openly longing to get back to “old-school lawyering.” But despite practices’ reboots and relaunches, firm life today vaguely resembles its former incarnation.

“We’re never going to go back to exactly the way things were, and we don’t need them to,” Allen Robertson, managing partner of Robinson Bradshaw of Charlotte, said last year. “We’re depending on lawyers to basically control their own schedules and act reasonably to support the culture and make a commitment to being together most of the time. Even our most senior lawyers have

learned to operate remotely, and that’s going to be a real advantage in the future.”

Never be the same

At Brooks Pierce in Greensboro, managing partner Reid Phillips said he learned long ago that things would never be the same. He said more attorneys are showing up to the office than a couple of years ago as they continue to discover what works best for them and their

clients.

“We continue to believe in the value of presence,” Phillips said. “It enhances learning, cooperation, creativity and teamwork. We also believe that our attorneys know what works best for their circumstances. And so, while being clear to everyone about the value of presence, we trust our attorneys to make the right decision about when to be in the office.”

Phillips added that whether to work remotely, in the office or a combination thereof is often a decision made after much experimentation.

One might stereotypically assume that older lawyers prefer the office while younger attorneys would rather work from home, but Phillips said that has not been his experience.

“I think the decision about where to work is often defined more by personality, commuting distance and how conducive the home is to work,” Phillips said. “We have very nice offices, whereas not every residence has a good, quiet, distraction-free and comfortable place to work.”

Tracking performance

Betty Temple, U.S. chair and CEO of Womble Bond Dickinson, which has offices in Charlotte, Greensboro, Raleigh, Durham and WinstonSalem, said that while there has been a notable increase in office occupancy over the last year or so, many of the firm’s employees “continue to thrive in a hybrid or remote setting.”

“We try to work with team members on their workplace needs whenever possible,” Temple said. “Respect for the individual is a core value of our firm, and it guides important decisions like this one.

Our office administrators do a great job of scheduling social gatherings, lunch-and-learn sessions, holiday celebrations and other events that bring people together.”

While being absent from the office might have connotations of decreased productivity, Temple said that she has seen no such correlation.

“The metrics show that our firm is strong and getting stronger,” she said. “Years ago, we pursued a path of growth — if that growth opportunity was a good fit for our firm and our clients — and it has worked out well. But I’m still a corporate attorney at heart, and my professional satisfaction always has been tied to: ‘Are my clients happy? Are we helping them achieve their business goals?’ Those questions must remain our north star.”

Attorneys and staff members at Moore & Van Allen in Charlotte are increasingly spending more time in their Uptown office, but attendance is still lower than it was pre-pandemic, managing partner Thomas Mitchell said.

“Any initial pushback to being back in the office has dissipated,” Mitchell said. “Many of our attorneys and staff still have the flexibility to sometimes work from their homes, and they can find a good balance for their lives and work.”

That balance has led to adaptation.

“The firm adapted well to take advantage of the improvements that were made in the legal industry during the pandemic in terms of technology and virtual connectivity, and we are very pleased with how it is working to help serve our clients,” Mitchell said.

At Sodoma Law in Charlotte, Monroe and Cornelius, managing

principal Nicole Sodoma said emphatically that while there is no going back to the way things were before, decreasing productivity was never an option.

“People continued to get divorced through the pandemic, and our employees rose to the occasion to continue to meet those needs,” Sodoma said. “Our productivity before and after the pandemic has remained steady and, in many areas, even increased with the trends for which we have been accustomed since we opened our doors 15 years ago.”

Progress through pain

Sodoma said she vividly remembers the day courthouses shut down for the pandemic. Rather than panic, she got to work upgrading her firm’s digital capabilities and beginning to manage the expectations of clients who had pending family law cases related to children, support obligations “and so much more.”

She said nothing beats connecting in person, but that learning to navigate new frontiers and work together through a crisis as a firm might have been one of the better team-building exercises Sodoma Law has undergone, learning to support its clients and one another through the upheaval and uncertainty.

“Emerging on the other side, there is no question in my mind that our cohesion and connectedness are better than ever, and I believe that is due to our efforts to keep staff as connected as possible during the early days of the pandemic and focusing on rebuilding that community once we were able in the latter days,” she said.

Phillips said that going from three

See Page 6

Mitchell

Sodoma

Temple

offices to more than 175 workspaces presented challenges and allowed firm leaders to think ahead about how to do things better going forward.

“We’re still having fun at it, but we certainly haven’t conquered all the challenges yet,” Phillips said. “I worry especially about data security with everyone having a laptop and taking them to so many places. With all that having been said, the freedom and flexibility that remote work gives is undeniably a great benefit overall.”

Mitchell said some old-school ways, such as in-person mentoring and social events, might experience a renewal, but the practice of law will never mirror yesteryear.

“The pandemic itself was a global tragedy, and it changed the world in ways that we now have an obligation to learn from and make things even better,” Mitchell said.

“Some change is slow and deliberate, while other changes are prompted by forces out of our control. I view it as a part of our commitment to our clients and community to be both resilient to change but also responsive and adaptive.”

Temple said that while the days of every attorney showing up to the office Monday through Friday are a thing of the past, the pandemic merely accelerated an exist-

ing trend. She said new approaches that increase productivity and better position attorneys to help clients should be embraced. But this does not mean, she added, that old-school lawyering is dead.

“‘Old-school lawyering,’ as I’ve always understood it, means getting to know our clients, understanding their needs and concerns, and working tirelessly to serve them,” Temple said. “That never changed, and it never should.”

“[W]hile being clear to everyone about the value of presence, we trust our attorneys to make the right decision about when to be in the office.”

Reid Phillips Managing partner, Brooks Pierce

Investors Title Legal Team

CAPABLE, COMMITTED, AND INVESTED IN YOUR SUCCESS

• With more than 150 combined years of title experience, our title attorneys and legal support team provide timely underwriting assistance to approved NC real estate attorneys.

• Solution-driven and responsive, our team addresses questions about residential and commercial transactions, helping you provide better service, increase productivity, and mitigate risk.

• Investors Title stays informed about regulatory changes and compliance issues that may affect your legal practice.

• We research, develop, and share best practice solutions for maintaining a secure and compliant real estate office.

• We consistently advocate on behalf of approved attorneys through our work with the Real Estate Lawyers Association of North Carolina (RELANC) and directly with the state Legislature.

• Residential & Commercial Title Insurance

•Commercial Escrow & Disbursement Services

• Trust Account Reconciliation

•§1031 Like-Kind Exchanges

• Investors Title’s in-person and online educational programs are unmatched in terms of quality and relevance.

• We provide thousands of hours of CLE/CPE credit every year to our attorney/ paralegal base.

• Visit invtitle.com/resources/nc for comprehensive resources and to access on-demand content.

North Carolina Title Attorneys (left to right): Kevin Joyce, Ryan Wainio, Drew Foley, Kristi Moretz-Icard, Ned Manning, Jimmy Bryan, Marc Garren, and Steve Brown

Media members know help is phone call away

When a journalist calls for help on legal issues such as public meetings or access to public records, Amanda Martin answers the phone.

Martin, the counsel for the N.C. Press Association, wears several hats for the professional organization. But the largest demand is for advice sought by reporters and editors who call its hotline. Open government issues are their leading concern, but there is much more.

“The overwhelming majority has been government questions, but we do have questions from time to time on advertising,” she said. “Sometimes we get libel questions. We don’t do prepublication review, but we can answer questions through the hotline.”

Other questions can lead to quick lessons on the law, such as how a no-contest plea works or how a lawsuit moves through court. If it’s a question about something outside of her field — bankruptcy law is one she mentioned — Martin still can help.

“We help get the reporter connected to another lawyer who can answer the questions,” she says.

But her efforts run deeper. Working in the late 1990s with John Bussian, a lawyer and the press association’s

lobbyist, she helped push a reporter shield law through the N.C. General Assembly. It protects journalists from having to testify in criminal or civil cases save in the narrowest of circumstances.

The law has held. Using its authority, Martin has led lawyers to withdraw subpoenas they have filed against journalists. She recalls only one case in which a reporter was called to the stand to give bare-boned testimony.

“The judge essentially required the reporter to testify,” she says, “and the length and breadth of the testimony was to confirm on the stand that the statements were made by the person [quoted in the story].”

Having watched the evolution in the media, several issues catch her attention. One is the public's changing perceptions of the institution and its possible effect on reporting.

“I do believe that the mantra about ‘fake news’ is proving problematic,” Martin says. “What I mean by that is that there is a section of the population who tends not to believe what is reported. It also will, I think, tend to have spillover effects into

AMANDA MARTIN AT A GLANCE

libel cases.”

She also struck a cautionary note about online reporting, quoting David Vigilante, CNN’s general counsel.

“He said that: ‘The rules of the road haven’t changed. There are just more ways to break them,” Martin says. “The ramifications of publishing online are much broader than publishing in a print newspaper. … The reasons for that are two-fold. The audience is much broader, potentially much broader, in terms of reach and geography,” and a story lives longer online, in part because it is shared by readers.

Martin also is positioned to help train the next generation of media lawyers. In addition to service with the press association, she recently joined Duke University’s law school faculty as a clinical professor of law (teaching) and supervising attorney of its First Amendment Clinic. Through them, she has the opportunity to offer what Hugh Stevens, the previous counsel for the press association and one of her mentors, gave her.

“You cannot possibly overestimate the value of having a good mentor,” she said. “No one could ask for a more compassionate helpful mentor than I had. ... He wanted me to succeed, and he did everything to help.” ◆

• Place of birth: Raleigh

• Education: B.S. in journalism, University of Florida, 1989; J.D., University of North Carolina School of Law, 1992.

• Firms affiliated with: Dow, Lohnes & Albertson in Atlanta, associate; The Law Firm of John A Bussian in Durham, associate; Everett, Gaskins, Hancock & Stevens, associate and later partner;

Stevens, Martin, Vaughn & Tadych, founding partner and later of counsel; Duke University School of Law, clinical professor of law (teaching) and supervising attorney of the First Amendment Center.

• Civic engagement: “I do most of that sort of thing through my church. I’m a member of St. Michael’s Episcopal Church [in Raleigh]. I’ve done a fair bit of

volunteer work through the church.”

• First job: “My first job with a paycheck and a W-2 was working at Baskin-Robbins at Gulf Breeze, Florida.”

• Biggest career challenge: “Probably the changing landscape of journalism. That has had fairly significant ramifications for those of us who serve the media industry.”

Martin

NORTH CAROLINA CHAPTER

L. Bell Jr.

T. Boyette

R. Clare

M. Clare

James L. Conner II

Kate Deiter-Maradei

Erin D. Eveson

Paul T. Flick

Patricia L. Holland

Joseph T. Howell

J. Anderson Little

Terry M. Kilbride

Michael E. McDaniel

Robert A. Meynardie

Karen Britt Peeler

James S. Schenck IV

Reagan H. Weaver

Barbara B. Weyher

Scott M. Taylor

Marshall A. Gallop Jr.

Ralph W. Meekins

S. Kent Smith

W. Lewis Sauls

Sherman Lee Criner

William A. Blancato

Colleen Byers

Kenneth P. Carlson Jr.

Anderson Cromer

William H. Freeman Ellen R. Gelbin

QUESTIONS WITH... Donald Reynolds and Larry Robbins

Delaware’s Chancery Court is deciding whether TripAdvisor can leave the state and reincorporate in Nevada, a move that the plaintiffs say will help insulate company directors from stockholder litigation. Gregory Maffei, a controlling stockholder, employs “sophisticated financial engineering” to achieve personal gain at the expense of minority investors, the plaintiffs allege.

Attorneys for TripAdvisor have declined to comment on the pending litigation, but the company has said in public filings that the move would provide better protection from “unmeritorious litigation” and that the company could pay less in fran-

chise taxes.

Donald Reynolds and Larry Robbins, both of Wyrick Robbins in Raleigh, recently spoke with Lawyers Weekly about the potential move and what it might mean for involved parties.

Reynolds joined Wyrick in 1993 and has experience ranging from representing startup companies in the initial phases of organization and financing to companies and underwriters in public offerings, mergers, acquisitions, and SEC reporting and compliance. He earned his bachelor’s degree from Whitman College and his law degree from New York University School of Law.

Robbins practices in the areas of

venture capital, corporate finance, mergers, acquisitions, securities and taxation. He represents entrepreneurs, beginning with early startups and continuing through the initial public offering stage. He earned his bachelor’s, Master of Business Administration and law degrees from the University of North Carolina at Chapel Hill.

1Q. Nevada appears to be a hot spot for incorporation and reincorporation. What is the logic behind the move in this case?

A: Reynolds: For many years, Nevada has sought to become the

Robbins Reynolds

B y h eath h aMaCheR

“next Delaware” in terms of being the jurisdiction of choice for companies. Among other things, Nevada has far lower annual franchise taxes than Delaware, and it has laws intended to minimize the duties, and therefore the potential liability, of officers and directors to their stockholders.

Q. If allowed, what does this move mean for TripAdvisor shareholders?

A: Robbins: Delaware permits a corporation to opt out of duty of care, but not duty of good faith or duty of loyalty or recently case law-imposed duties of oversight. Nevada eliminates liability for duty of care, duty of loyalty, duty of good faith and duties of oversight, but leaves the ability of shareholders to bring claims for fraud, intentional misconduct and knowing violation of law. An added risk on both sides of this situation is the lack of the large body of historical case law precedent — not to mention a judiciary with years of experience in this arena — that exists in Delaware, meaning neither stockholders suing the company nor the company’s officers and directors have as clear a sense of where the line is in Nevada between protected behavior and breaches of the law.

For big public companies, the franchise fee savings are less of an issue, but TripAdvisor does make the point in its proxy materials that it believes it will save almost $250,000 per year being in Nevada rather than Delaware.

A: Reynolds: For the average investor, I’m not sure any of this should make much of a difference. It is conceivable, though, that some large institutional investors would eschew Nevada corporations, at least on the margins, and of course if you make enough large institutional investors not want to hold your stock, it can have a negative effect on valuation and liquidity, which hurts all stockholders.

Q. What might this mean, if anything, for Delaware, which has been known as a mecca for incorporation?

A: Reynolds: Honestly, we’ve seen Nevada and some other jurisdictions make efforts over decades, if not longer, to attempt to become the new Delaware, all with very limited success. While the TripAdvisor situation is a highly visible potential defection, if history is any guide, Delaware seems likely to retain its status as the jurisdiction of choice for public companies.

Q. Is this something that we’ve seen locally?

A: Reynolds: We represent at least one publicly traded Nevada corporation, although it is not based in the Carolinas, and we have had a few local clients inquire about reincorporating there. We stay up to date on all these kinds of developments and advise clients to help them make the decisions they think are best for them from a

strategic perspective. That said, we don’t expect a major exodus of local companies out of Delaware and into Nevada, at least not in the near term, particularly in light of the relative dearth of precedential case law in Nevada.

Q. From your perspective, is this tactic an underhanded means of evading liability, or does it just make good business sense?

A: Reynolds: I wouldn’t characterize this tactic as either of those extremes. There’s a strategic risk/ reward analysis that each company needs to make to determine which state they prefer.

A: Robbins: I believe that the move serves two purposes — first, make it more attractive to serve on public boards; and second, at the time these changes were made, Nevada significantly increased its annual fees, so while still significantly below Delaware, this seems to be intended to be somewhat of a revenue driver for the state. ◆

TripAdvisor is seeking to move its incorporation from Delaware to Nevada, where company directors have fewer legally specified duties to shareholders.

Striking of unvaccinated jurors didn’t violate Sixth Amendment

Afederal District Court didn’t violate the Sixth Amendment right of criminal defendants to a jury of their peers when it struck potential jurors who were unvaccinated against COVID-19, the 4th U.S. Circuit Court of Appeals has held.

The defendants — unvaccinated due to sincerely held beliefs — objected that striking jurors based on vaccination status wouldn’t produce a representative sample of their peers. The District Court overruled their objection.

Judge A. Marvin Quattlebaum Jr. affirmed the District Court’s ruling.

“The fair-cross-section requirement applies to jury venires, not petit juries,” the judge explained. “And the district court’s decision to strike unvaccinated jurors based on their perceived inability to serve without creating unnecessary safety risks affected the composition of the petit jury for this particular case, not the individuals represented in the venire from which the petit jury is selected. So, we affirm.”

Judges G. Steven Agee and Allison Jones Rushing joined Quattlebaum in United States v. Cruz-Colon.

COVID-19 concerns

Jose Cruz Colon and his wife, Natassja Lopez-Alvarado, were indicted for drug trafficking and money laundering in the Eastern District of Virginia. Their September 2021 trial coincided with the emergence of the delta variant of COVID-19.

Concerned about safety in advance of trial, U.S. District Judge David J. Novak ordered the defendants to file a joint position as to their own COVID-19 vaccination status and whether they would agree to strike unvaccinated jurors.

The defendants said they were unvaccinated due to their “sincerely held beliefs” but they agreed to be tested before and during trial. They also objected to striking unvaccinated jurors for cause. The govern-

ment took no position.

The court sent a questionnaire to a venire of 110 prospective jurors for the parties to make strikes without having the individuals physically present. In addition to background and case specific questions, there were eight questions related to COVID-19 risk and vaccination.

Neither defendant objected to the vaccination questions. At a pretrial conference, the parties discussed which prospective jurors to strike for cause based solely on the questionnaires. The stricken jurors wouldn’t be required to appear for jury selection.

Novak struck all potential jurors who weren’t vaccinated, as well as several others for typical reasons, such as the burden on a single parent with children. The judge found alternative reasons to strike all but one of the unvaccinated individuals for cause.

Given an opportunity to explain their objection to striking jurors based solely on vaccination status, defense counsel explained that “[t]he thought process is that it may [not] include a representative sample of the jury. For instance, in this case, our clients are not vaccinated.”

The jury wouldn’t know whether the defendants were vaccinated, Novak responded. Defense counsel said the issue was “whether there was a jury of their

peers,” which Novak construed to be a Batson challenge for discriminatory strikes.

After pointing out that being vaccinated isn’t a protected class, Novak explained that he would strike unvaccinated jurors due to the COVID-19 risk with the delta variant and jurors eating lunch together without masks.

They weren’t raising a Batson challenge, the defendants clarified. Instead, they argued that striking unvaccinated individuals excluded a section of potential jurors and pointed out that the court didn’t know whether vaccinated individuals interacted with the unvaccinated.

Overruling the defendants’ objection, Novak cited statistics showing that unvaccinated people were 11 times more likely to die from COVID-19 that the vaccinated. Another unvaccinated juror was discovered and struck during voir dire over the defendants’ objections.

After ultimately being convicted of multiple crimes, the defendants appealed.

Shared attitudes

The defendants said the District Court’s use of for cause strikes to exclude unvaccinated jurors established a prima facie violation of their Sixth Amendment right to have their case heard before a “fair cross section of the community.”

Before addressing the defendants’ prima facie case, however, Quattlebaum focused on a threshold issue — whether the Sixth Amendment’s fair-cross-section requirement applied to the District Court’s decision to strike the unvaccinated potential jurors for cause related to COVID-19 safety risks.

“We hold that it does not,” the judge wrote.

The U.S. Supreme Court “ha[s] never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective

jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large,” Quattlebaum noted, citing the 1986 holding in Lockhart v. McCree.

He added that “Lockhart explained that ‘any … group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-crosssection requirement.”

And, looking to 1990’s Holland v. Illinois, Quattlebaum said the Supreme Court rebuffed an attempt to extend “the fair-cross-section requirement from the venire to the petit jury.”

In the instant case, the District Court’s use of voter registration lists to choose a venire has been expressly approved by the Fourth Circuit, the judge wrote. The master jury wheel included the unvacci-

nated individuals, as did the qualified jury wheel and the list of prospective jurors used to assemble the jury venire.

Qauttlebaum acknowledged that the lower court’s “categorical strikes” of jurors who hadn’t been vaccinated took place in a fairly unusual manner.

“In order to limit the number of individuals in the courtroom, the district court struck the jurors at a pre-trial conference after the venire was assembled but before the clerk of court assembled panels from which the parties conducted voir dire,” Quattlebaum wrote. “That, however, does not mean the ‘limited scope’ of the fair-cross-section requirement applies to the use of strikes for cause based on vaccination status.”

Again, citing Lockhart, the judge said the “fair-cross-section requirement applies only where groups are excluded ‘for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case.”

The jurors in Lockhart were excluded

based on their view of the death penalty, rather than “immutable characteristics” — such as race, gender or ethnic background — and historically disadvantaged groups weren’t deprived of their right to serve.

The same was true here, Quattlebaum wrote.

“While the district court’s strikes of unvaccinated jurors were based on COVID-19 safety risks rather than strongly held views about the subject matter of the case, those safety reasons related to the potential jurors’ ability to serve in this particular case,” he explained. “More specifically, the court felt that seating unvaccinated jurors in the midst of a global pandemic unnecessarily jeopardized the safety of the parties, the witnesses, the jurors and court personnel.”

Because the for-cause strikes affected the petit jury, not the venire, the 4th Circuit held that the Sixth Amendment’s fair-cross-section requirement didn’t apply. ◆

To view the full list of opinion digests, please visit www.nclawyersweekly.com.

the residual functional capacity for medium work.

Discussion

Under new regulation 20 C.F.R. § 404.1520c, when determining the persuasiveness of medical opinions, an ALJ must consider the following factors: (1) supportability; (2) consistency; (3) a physician’s relationship with the claimant; (4) a physician’s specialization; and (5) other factors, like a physician’s familiarity with the evidentiary record or their understanding of the Social Security Administration’s policies and evidentiary requirements.

Administrative

Social Security Disability – New Regulation – Additional Information Needed

Pursuant to the recently promulgated 20 C.F.R. § 404.1520c, the administrative law judge should have sought more information rather than rejecting plaintiff’s claim based on the ALJ’s discounting of a doctor’s opinion.

We reverse the denial of benefits and remand for further proceedings.

Background

Plaintiff’s main complaint is back pain, which he asserts limits him to resting most of the time. However, he is able to do some chores if he takes breaks.

Plaintiff has a very limited medical record. According to plaintiff, he cannot afford medical care.

An independent medical examination by Dr. M.A. Samia revealed “severe narrowing” of one spinal disk, “moderate narrowing” of another spinal disk, and “[p]rominent hypertrophic degenerative changes” in plaintiff’s lower lumbar facet joints. Based on Dr. Samia’s recommendation, plaintiff uses a cane.

The ALJ discounted Dr. Samia’s opinion that plaintiff needs an ambulatory device and concluded that plaintiff had

If the available evidence is incomplete, insufficient, or inconsistent, an ALJ will determine “the best way” to resolve the issue, which may include one or more of four paths forward: (1) recontacting a medical source for clarification; (2) requesting additional existing evidence; (3) asking the claimant to undergo a consultative examination; or

(4) asking the claimant or others for more information. If “there are inconsistencies in the evidence that [the ALJ] cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether [a claimant is] disabled, [the ALJ] will make a determination or decision based on the evidence [she possesses].” 404.1520b(b)(3).

Dr. Samia’s opinion offers little explanation underpinning the recommendation of an ambulatory device. But it is likewise true that Dr. Samia diagnosed plaintiff with arthritis, and that imaging results supported the impression that plaintiff suffered from multi-level disk disease.

To the extent that Dr. Samia’s justification for his ambulatory-device recommendation was ambiguous, the medical record is incomplete and the ALJ should have “take[n] additional actions” to seek clarification. 20 C.F.R. § 404.1520b(b). If given the opportunity, Dr. Samia could discuss whether the

passage of time between 2018 and 2019 could explain plaintiff’s apparently deteriorated gait and mobility, particularly given his undisputed, objective diagnoses of sciatica, disk disease, and arthritis. A simple inquiry could have resolved any ambiguities, and in the absence of clarity on the issues of consistency and supportability with respect to the three medical examinations, it cannot yet be said that substantial evidence supports the denial of benefits.

The ALJ also failed to adequately consider the intensity and persistence of plaintiff’s pain, and the ALJ improperly considered whether plaintiff’s daily activities were inconsistent with his claim of disability.

Reversed and remanded.

Dissent

(Rushing, J.) At no point did the ALJ find Dr. Samia’s report “ambiguous” or “incomplete.” Rather, she found his opinion about plaintiff’s need for an ambulatory device unsupported by his own examination of plaintiff and inconsistent with the other medical examinations in the record. The duty to weigh the evidence and resolve conflicts in the record rests with the ALJ, not with a reviewing court, and the ALJ fulfilled that duty here.

Furthermore, the ALJ didn’t question the reality or severity of plaintiff’s pain but instead reasoned from the medical records and other evidence that his pain did not result in major deficits to his strength, range of motion, or ability to ambulate. That was the relevant question for assessing plaintiff’s claims about the limiting effects of his symptoms.

Oakes v. Kijakazi (Lawyers Weekly No. 001-068-23, 19 pp.) (Henry Floyd, S.J.) (Allison Jones Rushing, J., dissenting) No. 21-2421. Appealed from USDC at

See Page 16

Continued From Page 15

Raleigh, N.C. (Robert Numbers, M.J.) Karl Osterhout for appellant; Natasha Todman McKay, Michael Easley and Keeya Jeffrey for appellee.

Civil Practice

Personal Jurisdiction – Jurisdictional Discovery – Appeals

Without ruling on plaintiff’s motion for jurisdictional discovery, the trial court granted defendants’ motion to dismiss for lack of personal jurisdiction. The trial court did not have the benefit of Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021) (clarifying the proper standard for the “relating to” prong of specific personal jurisdiction analysis). Because the trial court did not give any reasons for its implied denial of plaintiff’s requests for further jurisdictional discovery, we cannot be certain that the court applied an analysis consistent with Ford. Moreover, it is possible that additional discovery would lead the trial court to make new or additional findings of fact that could bear on the court’s jurisdictional analysis and our appellate review.

We therefore reverse the decision of the Court of Appeals and remand with instructions to vacate the trial court’s order and remand to the trial court for reconsideration of the plaintiff’s discovery motions in light of Ford Motor Co., Schaeffer v. SingleCare Holdings, LLC, 384 N.C. 102 (2023); Toshiba Glob. Commerce Sols., Inc. v. Smart & Final Stores LLC, 381 N.C. 692 (2022); and Mucha v. Wagner, 378 N.C. 167 (2021). Miller v. LG Chem, Ltd. (Lawyers Weekly No. 010-021-23, 3 pp.) (Per Curiam) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) On appeal from the Court of Appeals. Deepak Gupta, Robert Friedman, Sara Willingham, Stuart Paynter, Celeste Boyd and David Larson for plaintiff; Christopher Derrenbacher and Wendy Dowse for

defendants; Noah Abrams, Stacy Miller and Andrew Schwaba for amicus curiae. North Carolina Supreme Court

Civil Practice

Appeals – 11th Amendment Immunity – State OSHA Enforcement

Two of the plaintiff-employer’s employees died because of a fire at work, and North Carolina’s Occupational Safety and Health Hazard Association (NC OSHA) assessed several penalties against plaintiff. Plaintiff alleges that defendants – officials with authority over NC OSHA – are in violation of 29 U.S.C. § 657(h) because they evaluate their employees’ performance based on the number of penalties they have assessed and citations they have issued. Because plaintiff seeks prospective relief – a declaratory judgment and injunctions – plaintiff’s claims fall within an exception to defendants’ Eleventh Amendment immunity.

We affirm the district court’s denial of defendants’ motions to dismiss and for judgment on the pleadings. We decline to reach the issues defendants raised for the first time on appeal.

Despite the Eleventh Amendment’s prohibition against citizens suing states in federal courts, Ex Parte Young , 209 U.S. 123 (1908), allows private citizens to petition a federal court to enjoin state officials in their official capacities from engaging in future conduct that would violate the U.S. Constitution or a federal statute.

Plaintiff alleges that defendants’ violation of the federal Occupational Safety and Health Act (OSH Act) is “ongoing” or “continuing,” citing, among other things, defendant Dobson’s repeated admissions that NC OSHA’s compliance officers’ performance is based, in part, on the number of citations they issue.

The relief plaintiff seeks, including injunctive relief, is prospective in nature. Its injunctive claims ask to pro-

hibit defendants “from engaging in enforcement activities against [plaintiff], including initiating or maintaining administrative proceedings” and “from engaging in enforcement activities against any employer that has been inspected or issued citations under the official policy or practice . . . including issuing citations, prosecuting existing citations, or initiating or maintaining administrative proceedings.”

Plaintiff’s complaint does not seek to expunge their past citations but to preclude defendants from continuing their alleged illegal policies or practices (which plaintiff likely could not have discovered until after the citations were issued) that they believe are in violation of the federal OSH Act. Even assuming plaintiff’s requested relief relies on defendants’ previous allegedly unlawful actions, the true essence of the relief is prospective.

Finally, defendants insist that the North Carolina Department of Labor, and therefore the State of North Carolina, is the true party in interest. Not so.

The complaint does not seek action by North Carolina, but rather, by the named defendants who are at the helm of the North Carolina State Plan’s operation. Thus, defendants Dobson and Beauregard were properly named as such in this suit.

For the first time on appeal, defendants have raised issues of standing and abstention. Because resolution of these issues is not inextricably intertwined with the Eleventh Amendment immunity question, we decline to exercise pendent appellate jurisdiction over these issues.

Affirmed.

Industrial Services Group Inc. v. Dobson (Lawyers Weekly No. 001-06123, 20 pp) (Roger Gregory, C.J.) No. 22-1465. Appealed from USDC at Asheville, N.C. (Martin Reidinger, C.J.) Stacey Alayne Phipps, Joshua Stein and Victoria Voight for appellants; Travis Wayne Vance and David Klass for appellee. United States Court of Appeals for the Fourth Circuit

Civil Practice

Consent Order – Judgment vs. Contract – Remedies – Real Property Sale

Even though the consent order at issue contained findings of fact and conclusions of law, since (1) plaintiffs’ counsel drafted the order, (2) no hearing was held on the consent order, (3) Judge Disbrow signed the consent order after it had been drafted and signed by the parties, and (3) defendants’ brief says the parties reached an agreement settling all matters, the court holds that the parties intended the consent order to be a contract – and enforceable as such –rather than a judgment of the court, enforceable by contempt.

We affirm the trial court’s order of specific enforcement and its denial of defendants’ motion under N.C. R. Civ. P. 11.

Background

Plaintiffs leased a home from defendants with an option to purchase at the end of the one-year lease term. Near the end of the lease term, plaintiffs notified defendants of their intent to buy the home.

After multiple delays, plaintiffs filed a complaint seeking specific performance and damages. The parties and Judge Disbrow signed a consent order setting a closing deadline of 7 September 2021.

Plaintiffs contended that delays caused by defendants and others prevented them from closing on time. The trial court determined that, because the consent order did not include a “time is of the essence” clause, the consent order required plaintiffs to close within a reasonable time. The court granted plaintiffs’ motion for specific performance, a remedy for breach of contract.

Discussion

The question before us is whether the inclusion of findings of fact and conclusions of law in the consent order transformed it from a court-approved recitation of the parties’ agreement into a

binding order of the court subject to enforcement only through contempt powers.

There appears to be a split in our jurisprudence in how a court determines the proper remedy for a breach or violation of a consent order. One line of cases has concluded that, when a consent order contains findings of fact and conclusions of law, it is an order of the court only actionable through contempt powers. In another line of cases, our jurisprudence has definitively held consent orders are court-approved contracts subject to principles of contract interpretation, not contempt powers, without indicating whether the consent order contained findings of fact. In a third line of cases, this court reviewed the four corners of the consent judgment at issue to determine whether it was more appropriately considered a court-approved contract or an order of the court.

Based on our reading of these cases, we conclude that findings of fact and conclusions of law are not dispositive of whether a consent order is a court-approved contract, enforceable through a breach of contract action, or an order of the court, enforceable through contempt powers. Instead, a court must consider whether, on its face, the order goes beyond a mere recital of the parties’ agreement,

Here, we conclude the consent order was a court-approved contract subject to standard rules of contract interpretation.

First, the plain language of the consent order shows the court merely approved the agreement of the parties and set it out in the judgment.

Second, based on the facts of this case, it appears that Judge Disbrow approved the agreement reached by the parties and did not make a judicial determination of the parties’ respective rights. Notably, defendants had already signed and notarized the consent order before it was presented to Judge Disbrow. Judge Disbrow could not have transformed the parties’ agreement into his own determination of the parties’

respective rights and obligations without sending it back to defendants for approval and signature.

Third, it appears that Judge Disbrow essentially “rubber stamped” the agreement reached by the parties.

At trial, defendants acknowledged that they could have filed a motion for contempt, and that they ultimately decided not to because it would not have afforded them any relief.

The consent order was a court-approved contract subject to the usual principles of contract interpretation.

Contrary to defendants’ argument, the trial court did not “insert” language regarding a “reasonable time to perform” into the consent order. Instead, the trial court interpreted the consent order as allowing a reasonable time to perform because the consent order did not have a “time is of the essence” clause.

Affirmed.

Kassel v. Rienth (Lawyers Weekly No. 011-094-23, 33 pp.) (Julee Flood, J.) Appealed from Brunswick County Superior Court (Stanley Carmical, J.) Susan Groves Renton and Grady Richardson for defendants; Benedict Del Re for plaintiffs. North Carolina Court of Appeals

Civil Practice

Involuntary Commitment –Conditional Discharge Revocation –Standard of Proof & Judicial Process

Before revoking the conditional release of an inmate who had been committed due to mental illness, a court must establish a reasoned and logical linkage between the individual’s failure to comply with the conditions of his discharge on the one hand with the finding on the other that “his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.”

Since the district court did not have the benefit of our decision before revoking respondent’s conditional discharge, we

See Page 18

vacate the revocation and remand for further proceedings.

This appeal presents two consequential questions related to the continued involuntary commitment of those afflicted with a mental illness. First, we are asked to set the proof standard necessary to support revocation of conditional discharge under 18 U.S.C. § 4246(f). No circuit has exhaustively addressed the question. Second, we consider the process by which the district court should make and support its crucial findings on dangerousness under § 4246(f) (the “dangerousness inquiry” or “risk assessment”).

In § 4246(f), Congress expressed no proof standard.

A § 4246(f) revocation decision will hinge upon the outcome of a hearing, after which the district court must determine “whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.” 18 U.S.C. § 4246(f). The plain meaning of the text is whether the (1) subject’s “failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment” (2) would result in “a substantial risk of bodily injury to another person or serious damage to property of another.”

18 U.S.C.A. § 4246.

Before revoking probation, a court must establish a reasoned and logical linkage between the individual’s failure to comply with the conditions of his discharge on the one hand with the finding on the other that “his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.”

It is not the district court’s obligation to discern and develop the factors, statistical risk predictors, or other factual parameters bearing on this individualized inquiry. Instead, the district court should expect counsel and facility professionals

to appropriately develop the matter prior to, and then, if necessary, during the hearing. And if they default, the district court should direct them to drill down and perform their due diligence.

That process did not occur here. First, counsel failed to furnish the district court with a documentary record required for this committee. Second, the district court failed to require more.

Under the standards we establish today, a district court may now revoke conditional discharge upon finding by a preponderance of the evidence that (1) the individual failed to comply with his treatment regimen, including all conditions reasonably related thereto, and that, in light of that failure, (2) his continued release would create a substantial risk of bodily injury to another.

Vacated and remanded.

Concurrence

(Agee, J.) I write separately because the majority opines at length on matters unnecessary to resolve the case before us and which are not contained in the record.

The district court failed to make any findings connecting respondent’s failure to comply with the conditions of his discharge to a determination that “his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.” That is sufficient, in and of itself, to require remand.

United States v. Perkins (Lawyers Weekly No. 001-060-23, 112 pp.) (Volk, J.) (Steven Agee, J., concurring) No. 20-7024. Appealed from USDC at Raleigh, N.C. (Earl Britt, S.J.) Jennifer Claire Leisten and Alan DuBois for appellant; Genna Danelle Petre and Robert Higdon for appellee. United States Court of Appeals for the Fourth Circuit

Criminal Practice

Habeas Corpus – AEDPA Savings Clause – Traditional Application –Rehaif

Movant was convicted of possession

of a firearm by a felon and filed an unsuccessful habeas petition under 28 U.S.C. § 2255. Thereafter, Rehaif v. United States, 139 S. Ct. 2191 (2019), changed the law so that the government must now prove an additional element under 18 U.S.C. §§ 922(g)(1) and 924(a)(2): that a defendant knew he was in the class of persons prohibited from possessing a firearm. Since Rehaif was the result of statutory – rather than constitutional –interpretation, 28 U.S.C. § 2255(h) does not permit movant to file another habeas petition.

Nevertheless, where (1) at the time of movant’s conviction, settled law of this circuit established the legality of his conviction; (2) subsequent to movant’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which movant was convicted is deemed not to be criminal; and (3) movant cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law, movant may pursue a traditional habeas petition under 28 U.S.C. § 2241.

We deny movant’s motion for authorization to file a successive § 2255 application under § 2255(h)(2). However, movant may proceed to file a savings-clause application under § 2255(e).

It is true that, after Rehaif, possessing a firearm as a felon remains criminal under § 922(g). But the government did not charge movant with simply “possessing” a firearm in violation of § 922(g). It charged him with “knowingly” doing so under §§ 922(g) and 924(a). That movant’s conviction might have survived Rehaif if the government had charged him under § 922(g) alone is of no moment: the government chose not to do so.

Indeed, the reasoning of Rehaif itself provides that possession of the firearm cannot be disentangled from the scienter requirement for individuals charged under §§ 922(g) and 924(a)(2). In Rehaif, the Supreme Court noted that “the text of § 922(g) . . . lists the elements that make a defendant’s behavior criminal.” Thus, although the conduct of possessing a firearm remains a valid part of the

criminal offense with which movant was charged, proving that conduct is not enough to secure a conviction under §§ 922(g)(1) and 924(a)(2) after Rehaif unless the government also proves that the defendant knew he was in the class of persons barred from doing so.

In re McNeill (Lawyers Weekly No. 001062-23, 16 pp.) (James Wynn, J.) No. 20-159. Appealed from USDC at Raleigh, N.C. Nathaniel Wilson Reisinger, Catherine Carroll and Alex Tucker Stewart for movant; Rudy Renfer and Michael Easley for respondent. United States Court of Appeals for the Fourth Circuit

Criminal Practice

Conversion of Property by Bailee –Money to Be Invested

When the victim gave the defendant-investment advisor a check so he could invest the funds for her, the victim was not expecting defendant to return exactly the same check to her. Nor was defendant merely a courier for the check; instead, he was entrusted with a complex series of decisions concerning the investment of the funds as a fungible asset. Defendant was not a bailee.

We reverse the trial court’s denial of defendant’s motion to dismiss, and we vacate his conviction for conversion of property by a bailee.

A bailment is created when a third person accepts the sole custody of some property given from another. Historically, a bailment relationship contemplated the return of the transferred item of personal property.

Though not archetypally an object of bailment, money can, under certain circumstances, act as such. In State v. Eurell, 220 N.C. 519, 519 (1941), our Supreme Court stated, “One who receives money for safe keeping . . . is a bailee if under the agreement of the parties he is to return the identical money received, and debtor if he is to use the money and return its equivalent on demand.” And, in State v. Minton, 223 N.C. App. 319 (2012), disc. rev. denied,

366 N.C. 587 (2013), we held—without discussion—that a bailor-bailee relationship existed where checks were provided to the defendant to, in turn, pay a third party. However, we have also reiterated the principle that whether a bailment relationship has been created with respect to money depends on whether the agreement requires the use of “exact funds” as opposed to treating the money as fungible.

Bailment, by nature, involves a limited degree of control by the bailee over property transferred by the bailor for a certain purpose. It usually involves a return of the exact property, and where narrow exceptions to that rule exist, they exist for arrangements in which the bailee exercises control in a specific enough manner so as to still resemble traditional bailment.

Here, to consider defendant a “bailee” would be to allow these exceptions to swallow the rule. For purposes of this appeal, the uncontroverted status of defendant’s and the victim’s relationship was that of an investment adviser and advisee.

Defendant was neither obligated nor expected to return the exact check given to him to the victim. Moreover, defendant was not tasked with simply acting as a courier for a check; rather, he was entrusted with a complex series of decisions concerning the investment of the funds as a fungible asset. While we express no opinion on the ongoing correctness of our opinion in Minton in light of its deviation from the fundamental precepts of bailment theory, we decline to redouble that deviation here.

Defendant was not a bailee.

Vacated.

Concurrence

(Arrowood, J.) I see no reason why the rule requiring the return of the exact funds should continue to shield “investment advisors” from liability in conversion cases where they have been entrusted with large sums of money for the benefit of a third-party and intentionally and wrongfully convert those funds prior to investing them. Although I

agree that precedent compels the findings set forth in the majority opinion, I think precedent from 1941 should be reconsidered by our Supreme Court.

State v. Storm (Lawyers Weekly No. 011-100-23, 16 pp.) (Hunter Murphy, J.) (John Arrowood, J., concurring in judgment only) Appealed from Guilford County Superior Court (Lora Christine Cubbage, J.) Llogan Walters for the state; James Grant for defendant. North Carolina Court of Appeals

Criminal Practice

Possession of a Firearm by a Felon –Constructive Possession – Passenger in a Borrowed Car

Even if, as the state argues, defendant was a “custodian” of the car that his mother let him borrow if someone else drove, the driver was also a custodian of the vehicle; consequently, defendant did not have exclusive control of the vehicle in which a rifle was found in the back seat. The state failed to present other evidence which would show defendant had actual or constructive possession of the rifle.

We reverse defendant’s conviction for possession of a firearm by a felon. We remand for resentencing on defendant’s unchallenged conviction for misdemeanor resisting a public officer.

There were four adults in the car, with two in the rear seat, including a passenger in the seat behind defendant where the rifle was found. In reviewing the trial court’s denial of defendant’s motion to dismiss, we do not consider evidence that the passenger behind defendant claimed ownership of the rifle, but otherwise, there was no evidence of ownership of the rifle. Taken in the light most favorable to the state, the only evidence linking defendant to the rifle was his presence and awareness of the firearm in the car. This is insufficient to show defendant was in constructive possession of the rifle.

See Page 20

Continued From Page 19

The state points to evidence that, earlier in the day, defendant drove the car, he was observed examining weapons in a store, and he was among the individuals identified by a police taskforce that was trying to prevent more shootings in retaliation for a recent shooting. However, any linkage between defendant and the rifle created by these circumstances is, at best, speculative and conjectural.

There was no evidence defendant was in possession—actual or constructive—of the rifle while he was driving the vehicle earlier in the day. It is highly speculative to assume the fact defendant was observed examining or looking at firearms in a store means he later possessed the rifle. There was no evidence of any firearm purchase or that defendant took any firearm from the store. There was no evidence the rifle was purchased at the store.

The state also did not present evidence of DNA or fingerprints linking defendant to the firearm. Finally, the fact defendant was identified as a “retaliatory shooting concern” may well arouse suspicion defendant was in possession of a firearm, but mere suspicion does not constitute sufficient evidence to survive a motion to dismiss.

The state’s evidence, without more, is not sufficient to support a finding defendant, while seated in the front passenger seat and one of four occupants, was in constructive possession of a firearm found in the rear passenger compartment of a vehicle not owned or operated by defendant. Thus, the state failed to present sufficient evidence to establish defendant’s constructive possession of the firearm.

Reversed in part and remanded for resentencing.

State v. Sharpe (Lawyers Weekly No. 011-084-23, 13 pp.) (Toby Hampson, J.) Appealed from Nash County Superior Court (Thomas Haigwood, J.) Kellie Army for the state; Shawn Evans for defendant. North Carolina Court of Appeals

Insurance

Life – STOLI Policy – Insured’s Options

Even though the insured agreed to buy insurance on his own life simply as a means of making money on the sale of the policy to a stranger, since the insured always had the option of retaining the policy, the policy was not an illegal wagering contract on human life.

The life insurance policy issued by plaintiff to the insured is legally valid and enforceable.

In 2005, after a friend made money selling a policy insuring the friend’s life, Dr. Gordon Trevathan, age 81, met with the same insurance producer who had arranged the policy and sale for his friend. That producer, Wesley Chesson, arranged for Dr. Trevathan to obtain a $2 million life insurance policy from the plaintiff-insurer. A company owned by Chesson, E&W, lent Dr. Trevathan the amount needed to pay the policy’s premiums for two years.

At the end of the first two years, Dr. Trevathan had three options: (1) surrender the policy to E&W in full satisfaction of the premium loan; (2) pay off the loan balance to E&W and continue to retain the policy for himself going forward; or (3) sell the policy and use the proceeds to satisfy the loan balance. As he had always intended to do, Dr. Trevathan chose the third option, and he made a profit of $205,173 after repaying his loan to E&W.

Having received $2.7 million in premiums on the $2 million policy, the insurer now seeks a declaration that the policy is void as an illegal wagering contract on human life, i.e., a “stranger-originated life insurance” (STOLI) policy.

Our Supreme Court has made clear that a life insurance policy is a form of property and that, once lawfully issued, it can be assigned or sold to any third party—for investment purposes or otherwise. Hardy v. Aetna Life Ins. Co., 152 N.C. 286 (1910).

Nevertheless, our Supreme Court has also held that in order for a life insurance policy to be lawfully issued, the party obtaining the policy must possess an insurable interest in the life of the named

insured at the time of issuance; otherwise, the policy is void ab initio as an unlawful wagering contract. Trinity College v. Travelers’ Ins. Co., 113 N.C. 244 (1893).

Based on a review of Supreme Court precedent, the court finds that, under North Carolina law, where a policy is taken out by the insured on his own life, the following rule applies: The policy is void as a wagering contract only where there is evidence of an agreement—prior to the policy’s issuance—that the policy would be assigned to a third party and that the third party participated in that agreement. In other words, in order for such a policy to be deemed an unlawful wagering contract in this context, the ultimate assignee must have been a participant in (1) the sequence of events by which the policy was initially obtained, and (2) the agreement that the assignment would occur thereafter.

Here, as plaintiff concedes, there is no evidence in the record of any involvement whatsoever by LifeTrust, Advanced Settlements, Assured, or CSNL (the entities involved in the purchase of Dr. Trevathan’s policy) relating to the policy until 2007—which was well after the policy’s issuance in 2005. Thus, plaintiff is unable to satisfy the test articulated by our Supreme Court with regard to whether the policy is void as a wagering contract.

We note that Chesson would not have profited from Dr. Trevathan’s death and, in fact, continues to collect commissions each time the policy is renewed.

In the absence of legislation regulating STOLI policies, the court applies principles articulated by our Supreme Court and declares the policy on Dr. Trevathan’s life valid and enforceable.

Columbus Life Insurance Co. v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 020-035-23, 30 pp.) (Mark Davis, J.) 2023 NCBC 35. Travis Joyce, Michael Broadbent, Philip Farinella, Isaac Binkovitz and Gregory Star for plaintiff; Zachary Buckheit, Matthew Houston, Lee Hogewood, Harry Davis and Robert Griffin for defendant. North Carolina Business Court

CELEBRA W

& PHENOMS 2023

Table of Contents

Marcia H. Armstrong

Shelby D. Benton

W. Louis Bissette Jr.

Janet Ward Black

James A. Davis

Page 22

Page 22

Page 22

Page 23

Page 23

Alan Duncan ................................................................................................ Page 23

J. Richard Leonard

D. Blaine Sanders

James H. Slaughter ......................................................................................

Page 23

Page 24

Page 24

Kirk Warner Page 24

R. Michael Wells Sr

Tiffany M. Burba ..........................................................................................

Anna-Bryce Hobson

Kaitlin Powers

Page 25

Page 25

Page 25

Page 26

S. Collins Saint ............................................................................................ Page 26

Sarah W. Wheaton

Page 26

MARCIA H. ARMSTRONG PARTNER

THE ARMSTRONG LAW FIRM SMITHFIELD

As a student at Salem College, Marcia Armstrong never considered pursuing a career in law. That would probably come as a surprise to her colleagues, as she has enjoyed a prestigious career that most recently has included her current term as president of the N.C. State Bar.

Internships with the U.S. Coast Guard and the Women’s Center in Winston-Salem, as well as a role researching equitable distribution when it was debated in the N.C. legislature, led her to law school.

“At the end of my college career, it seemed like the law found me,” she said.

Armstrong practices family law alongside her husband, son and daughter. She enjoys the family affair.

“I believe that being a lawyer is an honor that carries with it a responsibility to serve not only your clients but your community as well,” she said. “I am blessed to watch my children develop into excellent lawyers and into adults with a servant’s heart using their talents to help others in need.”

SHELBY D. BENTON BENTON FAMILY LAW

Growing up in Maryland, Shelby Benton was a competitive horseback rider with plans to someday join her family’s marina business.

That goal changed during her senior year in high school when she took a “Youth and the Law” class. Her teacher told her she should should go to college and then law school and said she would make a great lawyer.

Today Benton practices family law in Goldsboro. She also enjoys giving back to the legal profession through service with the N.C. Bar Association and the N.C. Bar Foundation.

“I’ve been able to develop programs and relationships to help make the profession better serve itself and the public,” she said. “Through this work, I’ve received much more than I have given.”

Benton is part of a large family spanning five generations, including her 107-year-old grandmother, and she tries to spend at least one evening a week with her.

“I am sharing all I have learned with my children and grandchildren, and I hope I can create memories for them like my grandmother has done for me,” she said.

MCGUIRE, WOOD & BISSETTE ASHEVILLE

Lou Bissette grew up in High Point, where his mother, a career teacher, instilled in him the importance of getting an education.

Now a partner in the Asheville law firm of McGuire, Wood & Bissette, Bissette has practiced in economic development, land use and zoning for nearly five decades.

A dedicated public servant, Bissette was mayor of Asheville for four years. He also has served as chairman of the UNC System Board of Governors, vice chairman of the Wake Forest University Board of Trustees and is currently on the UNC-Asheville Board of Trustees. He recently achieved one of his bucket list goals by spending a week at the Men’s College World Series in Omaha, where he cheered on his Demon Deacons.

Bissette says the best piece of advice he ever received came from Richard Wood, senior partner at his firm.

“Richard taught me the importance of being dependable by showing up and doing my best every day,” he said. “That is the secret of success in any endeavor.”

W. LOUIS BISSETTE JR. PARTNER

JANET WARD BLACK OWNER WARD BLACK LAW GREENSBORO

Over the last decade, with Janet Ward Black at the helm, Ward Black Law of Greensboro has supported over 150 nonprofit organizations through its tithing program. “We give 10% of our gross revenues to nonprofits,” she noted.

A native of Kannapolis, Black served as Miss North Carolina in 1980, when she was a student at Davidson College.

As an attorney, she served a president of the N.C. Bar Association where she created “4ALL,” a program that recruits volunteer lawyers to provide free advice to North Carolinians for one day.

Over the 15-year life of the program, more than 100,000 North Carolinians have talked to lawyer at no charge.

Black, who practices personal injury and workers compensation law, started as a business lawyer in a small Charlotte firm. “I learned quickly I wasn’t suited for that kind of work,” she said.

Today, she is doing what she loves: “Helping people. I love learning and the people I work with,” she said.

ALAN DUNCAN PARTNER TURNING POINT LITIGATION GREENSBORO

Alan Duncan is passionate about public education. The Turning Point Litigation partner served for 18 years on the Guilford County Board of Education and, for the last five years, on the North Carolina State Board of Education.

“I hope that for as long as I am around, I can contribute in some positive way to the lives of the children in our state,” he said.

Born in Falkirk, Scotland, Duncan’s family emigrated to the United States when he was not yet 4. “I still remember seeing the Statue of Liberty for the first time,” he said.

Duncan learned the meaning of teamwork and great customer service as a stock boy in a department store. The experience has served him well, and today his prime focus is on professional service to his clients.

His advice to young and aspiring lawyers is to “like what you do, enjoy the people you do it with, and strive for excellence in your work.”

JAMES A. DAVIS

Known to colleagues as a hard-working, fearless, and skillful litigator, James Davis attributes his work ethic to his parents, who taught him to think before speaking and to have respect for oth-

Davis has worked at Davis & Davis in Salisbury for 33 years and has led the firm since his father died in 2005. He is a North Carolina Board Certified Specialist in state criminal law, federal criminal law, and family law. His practice deals in criminal, domestic and general litigation.

As a teenager, his job working with HVAC systems, appliances and septic tanks taught him that all people, no matter their stations in life, are important.

Davis cherishes his collection of letters from clients thanking him for bettering their lives. He aspires to embody the same values he passes along to young attorneys: “Surround yourself with mentors, be a life-long learner, and treat others the way you want to be treated.”

J. RICHARD LEONARD

DEAN CAMPBELL UNIVERSITY LAW SCHOOL RALEIGH

Richard Leonard recalls a secure, loving and adventurous childhood in Welcome, N.C., surrounded by a large family. But it was one of his challenging chores that ultimately convinced him to pursue a career in the law.

“On one steamy August morning when I was old enough to prime my own row of tobacco covered in tar and sweat, I proclaimed, ‘This is for the birds. I’m going to law school,’” he said.

Leonard, dean of the Campbell University Law School for the last decade, considers the school’s growth a top accomplishment.

“We have grown the school in numbers and credentials, dramatically expanded our clinical programs, been acknowledged as one of the top competitive advocacy law schools, and created vibrant international opportunities,” he said.

“I am far from done at the law school but when I’m ready, my next act will focus on international initiatives,” said Leonard, who recently completed his 75th trip to Africa, working both as a consultant to judiciaries and an educational program leader.

D. BLAINE SANDERS

ATTORNEY

ROBINSON BRADSHAW CHARLOTTE

For Blaine Sanders, the definition of success is a balanced life.

That includes taking care of clients, spending quality time with family, and participating in church and community events.

Sanders also takes special satisfaction in doing pro bono work and advises other attorneys to give back too.

“It will make you a happier lawyer,” he said.

Sanders credits his parents with keeping him grounded while at the same time, encouraging self-esteem.

“They instilled in me a belief that nobody was better than me, but also I wasn’t better than anybody else,” he said. “The difference would be what I did with what I had been given, and I’d been given a lot.”

Both his background and life’s work fit into his future goals, when the time comes for his second act.

“I would like to spend more time with my children and grandchildren and stay involved with my church and the community,” he said. “I also plan to keep doing pro bono work.”

JAMES H. SLAUGHTER LAW FIRM CAROLINAS

Jim Slaughter traces his fascination with the law back to his teen years as a page in the North Carolina Senate. He credits his teachers and parents with inspiring his work ethic and love of knowledge.

Slaughter passes along his passion as a mentor and leader in professional organizations, including the College of Community Association Lawyers and the American College of Parliamentary

“I’ve also tried to make Robert’s Rules of Order approachable and have preached the gospel of well-run meetings through proper procedure,” he said.

Slaughter reminds younger attorneys to avoid limiting themselves to a tried-and-true practice, encouraging them to be open to new and emerging areas of law.

“My primary areas of practice, homeowner/condo association law and parliamentary law, were never discussed during my law school. Other areas exist these days, from cell towers, to beer, marijuana, bitcoin or blockchain because lawyers have carved out their own niches.”

Growing up with two older brothers on a dairy farm in Ohio, Kirk Warner learned the lessons that hard work brings: valuing education, leadership, effort and achievement.

“We excelled in sports and academics,” he said. “My best memories are making our parents proud.”

Warner served a distinguished career as a colonel in the U.S. Army before retiring in 2013 after 33 years. He served as a senior legal counsel to the (Gulf War) Coalition while commanding a team of Army JAGs in major combat operations during the liberation of Iraq.

“We brought order to chaos, established new court systems, prosecuted those who had committed crimes against humanity, and tackled daunting tasks under impossible conditions,” he said.

Warner would tell younger attorneys to “look in the mirror every night and ask whether you’ve done all you can for your clients, our legal system, our community, our nation, and our veterans.”

“And,” he adds, “always drive it like you stole it.”

KIRK WARNER ATTORNEY SMITH ANDERSON RALEIGH

R. MICHAEL WELLS SR.

Attorneys who may be struggling with cognitive difficulties in their golden years have confidential assistance to help them retire with dignity, thanks to the efforts of Mike Wells and the N.C. Bar Association.

Ten years ago as NCBA president, Wells led the effort to start the association’s Transitional Support Services, which has received national recognition by the ABA.

“I have always tried to model in my own imperfect way the duty of lawyers to serve their community, state and profession,” he said. Wells focuses on estate planning and administration as well as civil litigation and personal injury.

A prolific writer, Wells reckons he has written over 200 articles under the title “What I have learned about life on the way to the courthouse.”

“They are not written for compensation but for the enjoyment I get from authoring a story about being a lawyer and what I have learned along the way,” he said.

ANNA-BRYCE HOBSON

ASSOCIATE BRADLEY CHARLOTTE

As an art lover, Anna-Bryce Hobson was excited to have the opportunity to help a minority-owned theatre company obtain a 501c3 nonprofit status. Though outside her normal duties as an associate in Bradley’s Construction Practice Group, it was an example of the opportunities her position affords.

“I am passionate about the arts, and I was able to provide pro bono legal advice, learn a lot, and contribute to Charlotte’s arts scene in the process,” she said.

Born and raised in Greenwood, Hobson worked three jobs to pay her NYU tuition, including as a personal assistant to the CEO of a day-trading firm.

“I was on call 24/7. I learned that expecting on-demand responses from employees can cause a lot of unnecessary stress,” she said. “In my own career, I strive to communicate response-time expectations to my clients and colleagues.”

Beyond the law, Hobson hopes to one day run a different kind of practice: a coffee shop and bookstore.

Growing up in Maryland, Tiffany Burba developed her love of education when her career-Navy dad decided to go to college after his discharge from service. He attended evening classes in

“He always let me ‘help’ him with his homework by taking me to the Smithsonian museum when he needed to write history or art reports, and by letting me do ‘end-user testing’ on the various calculators and other electronics he built from scratch in his tech-

Burba is fast becoming a force in the legal community. Last year, she was named Intellectual Property Section Member of the Year by the N.C. Bar Association.

Both in the office and outside of work, Burba lives and breathes technology law: She teaches courses on technology contracts at Campbell Law School, manages a statewide mentorship program for students interested in IP law, and serves on the leadership council of the N.C. Bar Association’s Intellectual Property Section.

M. BURBA ASSOCIATE PARKER POE RALEIGH

KAITLIN POWERS MEMBER

MOORE & VAN ALLEN CHARLOTTE

In 2022, as a member of Moore & Van Allen’s financial services team, Kaitlin Powers put her expertise to work and helped the firm’s financial services practice become the nation’s top lender law firm of the year. The impressive ranking by Refinitiv Loan Pricing Corp. was based on the number of syndicated loan closings performed.

SARAH W. WHEATON ASSOCIATE DECHERT CHARLOTTE

A native of Raleigh, Sarah Wesley Wheaton’s parents were lawyers and practiced together. Their work ethic and authenticity had a profound impact on Wheaton’s career.

Take your events online

When Powers is not representing her clients, you’ll find her working with numerous community organizations in Charlotte. She chairs The Arts Empowerment Project and is a board member of the Charlotte Legal Initiative to Mobilize Businesses (CLIMB). She also mentors with Wayfinders, an enrichment program for underserved students, and volunteers in reading programs for third graders.

Powers enjoys working with kids, saying it has enhanced her career as an attorney. In high school, she worked as a tennis instructor coaching elementary school students.

“There, I learned patience and the importance of customizing my approach to the needs of each client,” she said.

“Watching them manage the day-to-days of law firm life impacted the way I chose to move through my career,” she said. “They were true to who they are and always saw the best in every person and situation, no matter how hard their day was.”

Wheaton says she also had the unique fortune to grow up next door to my grandfather who believed in the importance of play and finding humor in all situations and opened the door for spontaneous fun in Wheaton’s life.

An associate at Dechert, Wheaton practices in mergers and acquisitions, and loves the variety that area of law brings.

“I never know what unique issues I’ll find in my inbox each morning, but what I do know is that I will work with my clients and colleagues to help resolve those fires, and I look forward every day to problem-solving and conversations with them,” she said.

Take your events online

With many of your clients and prospects working from home, now is a great time to engage them through a webinar.

Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.

Take your events online

Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!

What is included in your webinar:

• 45-60 minute webinar

Dedicated project support

• Email marketing

• Social media

• Print ad

For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.

With many of your clients and prospects working from home, now is a great time to engage them through a webinar.

S. COLLINS SAINT ASSOCIATE BROOKS PIERCE GREENSBORO

Collins Saint has been practicing law for just six years, but they’ve already helped hundreds of transgender North Carolinians seek and obtain government identification documents that correspond with their gender identity.

Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.

With many of your clients and prospects working from home, now is a great time to engage them through a webinar.

Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.

Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!

Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!

What is included in your webinar:

• 45-60 minute webinar

What is included in your webinar:

• 45-60 minute webinar

• Dedicated project support

• Dedicated project support

• Email marketing

• Email marketing

• Social media

Social media

• Print ad

• Print ad

“Showing an I.D. that lists a name or sex designation different from how you present can lead to bias, discrimination, and even violence,” they said. “I helped secure the ability for transgender North Carolinians to change the sex designation on their birth certificates without having to undergo major surgical procedures.”

As an associate in the Greensboro office of Brooks Pierce, Saint represents public and private educational institutions and school boards on an array of education law issues, including special education and disability issues, as well as tort claims. They also focus on diversity and civil rights issues.

For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.

For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.

The best advice they’ve come across? “Your best foot forward is your authentic self. My best foot is me: wholly, authentically, and vulnerably. All I can be is me," they said.

$4.6 MILLION SETTLEMENT

Settlement for worker crushed between two tractor-trailers

Action: Workers’ compensation claim

Injuries alleged: Traumatic brain injury, facial paralysis, neck and back injuries

Case name: Withheld

Court/case no.: North Carolina Industrial Commission

Name of mediator: Jolinda Babcock

Amount: $4.6 million, plus Medicare set-aside of $1.02 million

Date: Dec. 13, 2022

Attorney: Samantha Clark Aktug of Egerton Law, Greensboro (for

$6 MILLION SETTLEMENT

the plaintiff)

A 30-year-old supervisor who was catastrophically injured when he was crushed between two tractor-trailers in December 2004 reached a $4.6 million settlement of his case.

He suffered multiple injuries, including a traumatic brain injury, facial paralysis and neck and back injuries.

The claim was accepted as compensa-

ble, however, during the case, there were numerous contested issues, one being attendant care.

Counsel for the plaintiff was able to secure retroactive compensation for attendant care and ongoing 24-hour attendant care. Additional to the $4.6 million settlement was a $1.02 million Medicare set-aside.

Many of the case’s details have been withheld pursuant to a confidentiality agreement. ◆

Lack of security results in shooting deaths of two students

Action: Wrongful death

Injuries alleged: Negligent security

Case name: Campbell, et al. v. Campus Evolution Villages LLC, et al.

Court/case no.: Guilford County, No. 18-CVS-4285

Jury and/or judge: Judge Lora C. Cubbage

Amount: $6 million

Date: May 15, 2023

Most helpful experts: Norman Bates, Daryl Greenburg

Attorneys: Valerie Johnson and Jay Trehy of Johnson & Groninger, Durham (for the plaintiffs)

$5.75 MILLION SETTLEMENT

Defendants owned and operated student apartment complexes around the country, including Greensboro, where apartments were rented mostly to North Carolina Agriculture & Technical State University students.

Campus Evolution Villages (CEV) was aware of frequent violent crime in the area and the complex but failed to take appropriate measures to keep the property safe.

In August, despite ongoing crime, CEV cut back on its security at the complex. On Oct. 1, two students, unknown to each,

were invited to a party at the complex. Uninvited trespassers, who were not students, attempted to get into the party and were turned away.

Before leaving the property, the trespassers shot toward the apartment. Bullets went through the outside wall and into a bedroom where students were hiding, killing two of them.

The case involved several expert witnesses, including forensic, architectural and property management experts. ◆

Former students sue school system over sex abuse by teacher

Action: Institutional sex abuse

Injuries alleged: Sexual abuse and/or exploitation by teacher

Case name: John Does 1-14 v. New Hanover County Board of Education, et al.

Court/case no.: New Hanover Superior Court; No. 19-CVS-2745

Name of mediator: René Trehy

Amount: $5.75 million

Demand: $8 million (limits of insurance)

Highest offer: $5.75 million

Special damages: Pain and suffering, including mental anguish, anxiety, major depression, PTSD, schizophrenia and attempted suicides in some victims

Date: June 9, 2023

Most helpful expert: Charol Shakeshaft, Ph.D., professor, educational leadership (Title IX), Richmond, Va.

Attorneys: Martin Ramey and Joel Rhine of the Rhine Law Firm, Wilmington, and Jim Lea and Mary Charles Amerson of the Lea/Schultz Law Firm, Wilmington (for the plaintiffs); Deborah Stagner and Stephen Rawson of Tharrington Smith, Raleigh (for the defense)

Plaintiffs are 14 men who were former students of high school chemistry teacher Michael Kelly, who abused his students over the span of two decades in Wilmington.

The plaintiffs contended that the school district had failed to properly investigate Kelly despite multiple complaints by students and parents during his employment. In addition, Kelly reported to law enforcement that he had been cleared of two investigations in 2006 and 2010.

The defendants argued that 10 of the plaintiffs were barred by the statute of limitations, which was revived by the SAFE Child Act, which is being challenged in several appellate cases pending before the Court of Appeals and the Supreme Court. ◆

$1.63

MILLION VERDICT

Exploding vaping device causes leg burns

Action: Product liability

Injuries alleged: Third- and second-degree burns to thigh and calf

Case name: Weldon Moore v. Richmen Enterprises LLC d/b/a Darth Vapor, Joyetech, USA Inc. and Midwest Goods Inc.

Court/case no.: General Court of Justice, New Hanover County, Superior Court Division; No. 20-CVS-3997

Jury and/or judge: Judge G. Frank Jones (jury verdict)

Amount: $1.63 million

Date: March 22, 2023

Most helpful experts: David Rondinone of Berkeley, Calif., (engineer) and Stuart Statler of Mooresville (consumer product safety)

Attorneys: F. Davis Poisson, III of Poisson, Poisson & Bower, Raleigh, and Chris Moore of Richardson Thomas, Florence, S.C. (for the plaintiff); Andy Santaniello of Pope, Aylward, Sweeney and Santaniello, Charlotte, for Richmen

$370,000 VERDICT

Enterprises; Tori S. Levine of Bowman and Brooke, Dallas, Texas, and Elizabeth H. Bennett of Hedrick, Gardner, Kincheloe and Garofalo, Wilmington, for Midwest Goods Inc. (for the defense)

The plaintiff suffered third-degree burns on his right leg after his vaping device blew up in his pocket while he was at a job site.

The lawsuit named the manufacturer of the device and the distributor and retailer of the lithium-ion battery that was ultimately the cause of the explosion. The manufacturer defaulted and was not involved at trial. Against the remaining defendants, claims included negligence and failure to warn, with additional warranty claims against the retailer.

Contributory negligence was charged and on the verdict form along with other statutory defenses including the sealed-container defense.

The plaintiff’s arguments included that it was an unauthorized sale (manufacturers of these batteries prohibit the individual use of these batteries), the battery itself was not authentic (it was a fake from China) and the warnings were either not given or inadequate.

Primary defenses included that they did not believe they sold the battery and, if they did, the plaintiff misused it. The defendants also argued that the Food and Drug Administration had impliedly authorized the use of these batteries in vaping devices. ◆

Jury sides with plaintiff in car accident case

Action: Motor vehicle negligence

Injuries alleged: Compression fracture of second lumbar vertebrae

Case name: German DeJoya v. Shanielle Ashley Roberts

Court/case no.: Wake County Superior Court; No. 20-CVS500163

Jury and/or judge: Judge John Smith (jury verdict)

Amount: $370,000

Special damages: $11,500 medical expenses, $12,500 lost income

Date: June 7, 2023

Attorneys: Isaac Thorp and Claudia Barcelo of Thorp Law, Raleigh, (for the plaintiff); William Kesler of Simpson Law Firm, Raleigh, (for the defense)

Plaintiff, an intensive-care unit doctor, was driving to work the overnight shift on July 13, 2019. The defendant was driving erratically as she raced up behind him. She swerved into the right lane attempting to pass plaintiff, struck a car in that lane and then swerved back and struck plaintiff’s car.

Plaintiff’s car rolled over before landing on its wheels. Plaintiff felt immediate pain in his back and could not

get out of his car. The defendant pulled over for about 30 seconds, then fled the scene.

Plaintiff was treated at the emergency room and released with a back brace. He was unable to perform basic tasks such as bathing or dressing independently but had family members who assisted him at home.

He returned to work two weeks later on very limited duty. Despite his return to work, his back was painful. Plaintiff traveled overseas for his father’s funeral about two months after the crash. He reported being 90% better a year after the crash.

Four years later, he still has daily back pain, which flares up after long periods of sitting or standing.

Plaintiff’s treating physician testified that plaintiff’s vertebrae would always be deformed; that his symptoms were consistent with other patients with similar injuries; that he actively participated in his own recovery; that he was at increased risk for arthritis and other problems; and that he would

always have to be careful not to overexert himself. The physician could not say whether plaintiff’s pain was likely to be permanent.

The liability carrier paid its policy limits of $30,000. Plaintiff’s uninsured motorist policy limits with Erie Insurance was $250,000. Erie’s exposure was $220,000 because it got credit for the liability coverage that was paid.

Erie elected to defend the claim in its own name. Although the defendant was properly served with the complaint, she did not appear at the trial.

Plaintiff offered to settle the claim for $150,000. Erie’s highest offer was $70,000, which combined with the liability coverage, equaled an offer of $100,000.

Plaintiff declined to arbitrate the UIM claim and instead chose to have the matter heard by a jury.

At trial, Erie’s attorney suggested the jury return a verdict between $50,000 and $100,000; plaintiff’s counsel suggested the jury return a verdict of $370,000. ◆

New associations

Leigh Brady has been named chief executive officer of the State Employees’ Credit Union. The first female CEO, she has spent 35 years at SECU and served as chief operating officer since 2021, previously holding leadership positions in various areas of the organization including human resources, communication, organizational development, accounting, marketing and auditing.

Kevin Ceglowski has joined the Raleigh office of Smith Anderson as a partner in the workplace law team. His employment law experience includes representation of employers in both state and federal court in a variety of areas, including defending discrimination charges, counsel and advice and drafting employee handbooks and policies.

Poyner Spruill announced that Marieé Walton has joined the firm as its chief operating officer, based in the Raleigh office. Before joining the firm, she was the chief administrative officer of a private equity startup in New York City.

Phil Thomas and Kevin Cline have joined Chalmers, Adams, Backer & Kaufman in the firm’s Raleigh office. Both focus on political and government law and civil litigation, with Thomas formerly serving as chief counsel and political director of the North Carolina Republican Party and Cline having served as the Republic National Committee’s election integrity counsel in North Carolina.

Gordon, Rees, Scully, Mansukhani has added Megan Stacy as a partner in its Raleigh office, where she joins the construction, commercial litigation, product and general liability, and trucking and transportation practice groups.

The Charlotte office of Seyfarth Shaw has added Andrew Quesnelle as a partner in the firm’s labor and employment

department, where he will bring nearly 17 years of experience in labor and employment law, litigation, investigations, labor, and employee relations and benefits.

Tanisha Palvia has joined Moore & Van Allen’s white collar and government enforcement defense group in the Charlotte office. She focuses her practice on representing individuals and corporations in white collar criminal defense and other government enforcement matters, as well as representing clients in internal investigations.

Law firms

Smith, Currie & Hancock and Oles Morrison Rinker & Baker, both construction and federal government contract law firms, have announced their combination. The firm will use Smith Currie Oles and Smith Currie, along with corresponding logos, under the auspices of Smith, Currie & Hancock. The firm will now include 76 attorneys across seven offices, including Charlotte.

Promotions

Eleanor Gilroy has been promoted to the position of of counsel by Cranfill Sumner. Based in the firm’s Raleigh office, she practices in the civil litigation section and defends clients in a variety of matters, including cases involving premises liability, personal injury, construction defects, motor vehicle accidents and business disputes.

Wake Family Law Group promoted two attorneys in its Raleigh office to partner: Rachel Beard and Melanie Phillips. Beard is a board-certified family law specialist focusing on family law negotiations and litigation. She also is a certified parenting coordinator in high-conflict custody matters and certified as a family financial mediator. Phillips, a member of the Family Law Section of the North Carolina Bar

Association and the Wake County Bar Association, is a board-certified family law specialist representing clients in all North Carolina family law litigation and negotiations.

Honors

Lesley Attkisson Lewis has been selected as a winner of The M&A Advisor’s 14th Annual Emerging Leaders Awards, chosen from a pool of nominees based on her accomplishments in business and service to the community. A partner in the Charlotte office of Moore & Van Allen, Lewis handles a broad range of corporate transactional matters, with a focus on mergers, acquisitions, divestitures, carve-out transactions and private equity investments. She is a member of the firm’s public service committee and has served on the Juvenile Diabetes Research Foundation’s Hope Gala Committee since 2019.

Cranfill Sumner partner Robert H. Griffin in Raleigh recently competed training and is now a certified Superior Court mediator with the North Carolina Dispute Resolution Commission. Chair of the firm’s trucking and commercial transportation practice group and co-chair of the civil litigation section, he concentrates his practice in the defense of trucking and commercial transportation claims and lawsuits.

Five attorneys from Brandley Arant Boult Cummings’ office in Charlotte have been inducted into the 2022 North Carolina Attorney Pro Bono Honor Society. Leah M. Campbell, Matt S. DeAntonio, Rachel M. LaBruyere, Najla Long and Amy E. Puckett were recognized for providing more than 50 hours of pro bono legal services to North Carolina residents who are unable to afford legal assistance. They are involved in several pro bono efforts, including with Second Harvest Food Bank, Council for Children’s Rights and Habitat for Humanity. ◆

Ex-president, bar association have made their choice

Nothing disappoints like the cowardice of fair-weather friends.

In 2021, the North Carolina Bar Association touted its queer-friendly bona fides when it formed the Sexual Orientation and Gender Identity (SOGI) Committee, which pledged to work "to secure full equality for members of the LGBTQ+ community in the NCBA, the legal profession, and society" and “to oppose discrimination based on sexual orientation, gender identity or gender expression.”

With LGBTQ+ Americans under political and cultural assault, the NCBA's public commitment to equality offered a promise that we would be supported by well-positioned companions of goodwill and stout heart.

It was a false promise.

In addition to its other work, SOGI provides queer attorneys with opportunities to socialize. One such event, a drag trivia night, was to be held on June 8 — until the association’s then-president, Clayton Morgan, unilaterally canceled it.

The job of the NCBA, Morgan said during a videoconference held to explain his decision, is "not to steer into contested politics or offer up political responses. ... We, therefore, try to avoid jumping into legislative or political areas." He added that the NCBA should avoid "delving into the politics of matters" or "taking positions.”

Alternative suggested

Instead of the drag event the NCBA sought to avoid, Morgan counseled SOGI to "have a forum discussion where you present both sides like we typically like to do. Both sides, a neutral moderator. Get the issues out there that way you're not

perceived as trying to advance just your agenda on the world."

How did an absolute ethical imperative — "full equality" — get so quickly recast as "taking positions" in a "both sides" political argument?

The NCBA's stand came after the Republican Party gained veto-proof supermajorities in both houses of the North Carolina General Assembly. If the NCBA fully embraces its queer members now, "it's likely our Bar Association-backed legislative agenda will be negatively affected," Morgan said, "because political viewpoints will be inferred by the General Assembly.”

The bottom line: Morgan canceled the event so the Republican-controlled legislature won't think the NCBA is getting too cozy with the queer community. We were expendable.

Privileged beneficiaries of the status quo tell us all the time who they really are, but we too often choose not to listen. They make negotiable commitments of convenience, not non-negotiable commitments of conviction: "Do the right thing, always" becomes "Do the right thing, when prudent or advisable or safe." Ultimately, such people will be guided not by principle, but by the perspectives of those whom they most respect and fear: the holders of power.

King’s 'Lesson'

In our desire to believe that the ambivalent are actually allies, we forget the lesson Dr. Martin Luther King Jr. taught in his “Letter From Birmingham Jail”: Wellmeaning moderates who serve as our society's prominent pillars of respectabili-

ty are unreliable allies because their instinct to placate the powerful is more developed than their instinct to help the vulnerable. They "prefer a negative peace which is the absence of tension to a positive peace which is the presence of justice."

Even if, upon reflection, the NCBA's cravenness was predictable, it still counts as an act of disheartening ethical failure given the political environment in which we find ourselves. Lawmakers in North Carolina and across the country seek to render us second-class citizens, especially targeting transgender people and drag shows in their broader anti-queer campaign. It is these people before whom Morgan chose to genuflect. He became their collaborator.

The LBGTQ+ community has been thrust into a political and cultural battle. It is a fight for justice and liberty and equality, for decency and dignity, for our full humanity. Neutrality is impossible. North Carolinians either must support the queer community by pushing back against homophobia or cast their lot with those who see us as a scourge. There is no middle ground on which the calculating can stand.

Sadly, the NCBA has made its choice. The North Carolina Bar Association declined an opportunity to offer a rebuttal to this commentary.

Michael F. Roessler is a member of the bar in North Carolina and South Carolina. Practicing in Charlotte, he handles workers’ compensation cases and is a North Carolina board-certified specialist in workers’ compensation law. ◆

Even if, upon reflection, the NCBA's cravenness was predictable, it still counts as an act of disheartening ethical failure given the political environment in which we find ourselves.

ROESSLER

Ruling better defines attorney-client privilege

The North Carolina Supreme Court’s recent opinion in Howard v. IOMAXIS LLC (2023 WL 4037483 (June 16, 2023)), provides valuable guidance to in-house and outside counsel regarding the attorney-client privilege when communicating with corporate officers and employees, as well as the attorney-client privilege in joint representations.

Support for Bevill doctrine

An organizational client can communicate with corporate counsel only through the organization’s constituents — that is, only through its officers, directors and employees. Because the company is the client, the attorney-client privilege protecting those communications belongs to the company. Under the North Carolina ethics rules, corporate counsel may also form an attorney-client relationship with a company’s constituent (N.C. Rule of Professional Conduct 1.13(g)). When an individual employee, officer or director seeks personal legal advice from corporate counsel, it is possible that a separate attorney-client relationship could be formed between the lawyer and the individual (Upjohn Co. v United States, 449 U.S. 383, 389 (1981)). It can frustrate a company’s goals when the company seeks to disclose certain communications, but an individual objects and asserts the attorney-client privilege on his own behalf. Also, if, as a result of communications with an individual constituent, corporate counsel learns information that gives rise to a conflict of interest, counsel could be conflicted from continuing to represent the organization.

In the IOMAXIS decision, the North Carolina Supreme Court, for the first time, explicitly endorsed the Bevill doctrine created by In re Bevill, Bresler

& Schulman Asset Management Corp., (805 F.2d 120 (3d Cir. 1986)). The doctrine clarifies how the privilege operates in the corporate context and instructs how organizational clients and their corporate counsel can create, or avoid creating, a separate attorney-client privilege belonging to corporate constituents.

Under Bevill, to assert a separate attorney-client privilege successfully, a corporate officer or employee must show that: (1) the individual initiated contact with corporate counsel with the purpose of seeking legal advice; (2) the individual made it clear that she was seeking legal advice in an individual, rather than representative, capacity when approaching corporate counsel; (3) corporate counsel “saw fit” to communicate with the individual in her personal capacity, knowing that a possible conflict of interest could arise; (4) the communications were confidential; and (5) the substance of the communications with counsel did not “concern matters within the company or the general affairs of the company” (Bevill, 805 F.2d at 123). Although the IOMAXIS court wholly endorsed the Bevill doctrine, it found the test inapplicable to the facts before it. However, this case is instructive for in-house and outside counsel.

As a matter of best practice, corporate counsel who seek to avoid an inadvertent attorney-client relationship with an individual employee, officer or director must remain attentive to requests from those constituents for legal advice and respond with care. Depending on the circumstanc-

es, a polite-but-clear statement of counsel’s role as company counsel may suffice; in other circumstances, a corporate “Miranda warning” may be necessary. Counsel should also remain mindful that Rules 1.13(f) and 4.3 of the N.C. Rules of Professional Conduct require a lawyer to explain the identity of her client when the lawyer reasonably should know that the organization’s interests are adverse to those of the constituent or the unrepresented constituent misunderstands the lawyer’s role in a matter. Documenting company counsel’s communications on these points may prove useful if a future dispute arises.

Privilege in joint representations

The Supreme Court concluded in IOMAXIS that, once a dispute arose among a group of clients who were previously jointly represented by the same counsel, one client can waive the attorney-client privilege for joint attorney-client communications. Acknowledging that a fact-specific analysis was necessary, the court concluded that competent evidence existed to support the following findings: (1) outside counsel jointly represented IOMAXIS and four individuals in defending certain litigation; (2) the communications at issue — a recorded call — related to the joint representation; and (3) counsel’s “very messy” disclaimer that he represented the company’s interests was ineffective when he continued to provide personal advice to the individuals on the call. As a result, one individual was unilaterally entitled to waive the attorney-client privilege and use the recorded call with corporate counsel in the individual’s dispute with IOMAXIS and the others. This out-

See Page 32

Maynard

COMMENTARY

Continued From Page 31

come, which is consistent with the Comment 30 to Rule 1.7 of the N.C. Rules of Professional Conduct, is now the law of North Carolina.

The court noted that the law firm’s engagement agreement for the joint representation informed the clients that “in the unlikely event of a disagreement among you, the attorney-client privilege will not protect information you share with us.” Similar language is commonplace in joint engagement agreements because Comments 30 and 31 to Rule 1.7 instruct that clients should be informed of how a joint representation affects the treatment of confidential information and the application of the privilege.

Details of case

In IOMAXIS, the law firm that was engaged as joint litigation counsel for the company and four individuals had previously been engaged by the company alone as corporate counsel. These two engagements proceeded

in parallel. IOMAXIS asserted the attorney-client privilege to protect the contents of the recorded call, arguing that it related to the corporate-counsel representation rather than the joint litigation defense. The court disagreed and offered two suggestions to guide outside counsel in avoiding controversy regarding the scope of the privilege in parallel engagements:

• Outside counsel can specify in engagement agreements which particular firm attorneys will handle the corporate counseling and which will handle the joint litigation defense and inform the jointly represented individuals that legal advice from the corporate attorneys is solely for the benefit of the company. The firm will need to maintain these designations and roles and update them when team members join or leave.

• When speaking with corporate constituents, counsel representing the company alone can provide a clear disclaimer of representation of the individuals, describing the lawyer’s client as the company, explain-

ing that the communication is subject to the attorney-client privilege held solely by the company, and that each individual must consult his own counsel for personal legal advice. Although the court did not cite Upjohn, these suggestions track the long-standing guidance provided by that decision.

For in-house counsel managing outside counsel in joint representations, it is important to confirm that each engagement agreement properly documents the engagement terms. In-house counsel can provide clarity for officers or other constituents about the role of outside counsel. Of course, in-house counsel should likewise make clear their role as counsel to the company and correct any confusion that may exist for employees or others.

Kate Gordon Maynard serves as Robinson Bradshaw’s general counsel. She advises the firm on legal issues including ethics and professional responsibility, conflicts of interest, risk management and compliance, privacy, and cybersecurity. ◆

We are always grateful for referrals and value our co-counsel relationships. Call John Alan Jones or Forest Horne to discuss a possible relationship at (800) 662-1234. All inquiries held in the strictest

High court avoids Section 230 questions

When the U.S. Supreme Court agreed last fall to consider two cases seeking to narrow the scope of the immunity provided to internet companies by Section 230 of the Communications Decency Act (47 U.S.C. § 230), those internet companies — and the lawyers who represent them — were understandably concerned. They breathed a collective sigh of relief in May when the court, in a pair of unanimous decisions, avoided the Section 230 questions and, as a result, might have strengthened the law’s protections.

Since its enactment in 1996, Section 230 has provided robust immunity to internet companies that published content from third parties, an immunity that helped fuel the explosive growth of the internet over the past 27 years. Specifically, Section 230(c)(1), dubbed “the 26 words that created the internet” by author Jeff Kosseff, provides:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In short, when a website (think Facebook, Twitter, Instagram, YouTube) simply publishes content created by third parties, the website generally cannot be held liable for that user-generated content. Section 230’s immunity allowed internet companies to create websites relying on user-generated content without the fear of crippling tort liability. After all, if Twitter could be held liable for every defamatory tweet someone posted, it would be out of business faster than anyone can type 280 characters.

In recent years, creative lawyers have sought ways to avoid Section 230 and to hold internet companies liable for harm allegedly caused to their clients. Those efforts — for example, product liability claims alleging that the design of the website caused harm — have enjoyed limited success. For the most part, courts have

held that if the crux of the claim relates to user-generated content, it is barred by Section 230 unless the website “materially contributed” in some way to the tortious content.

The two cases considered by the court, Twitter Inc. v. Taamneh and Gonzalez v. Google LLC, involved a new twist arising from tragic facts. In Taamneh, the plaintiffs were family members of a person killed in a 2017 attack by the Islamic State group on a nightclub in Turkey. In Gonzalez, the plaintiffs were family members of a person killed in the 2015 IS group attacks in Paris. In both cases, the plaintiffs sued various social media companies under 18 U.S.C. § 2333, which allows U.S. nationals who have been “injured … by reason of an act of international terrorism” to sue in civil court “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”

'Aided and abetted'

In both cases, the plaintiffs alleged that the social media company defendants had “aided and abetted” the IS group by allowing the terrorist organization to use their platforms to recruit new terrorists and to raise funds. According to the complaints, the social media companies knew that the group was using their platforms to recruit and raise funds, but they did not take steps to stop it. The defendants asserted they were protected by Section 230. In Taamneh, the 9th Circuit Court of Appeals rejected that defense; in Gonzalez, the same court held that the defendants were immune from suit.

After Section 230 became a political football in the 2020 presidential campaign, the Supreme Court’s decision to hear these cases raised a concern that the court was looking for an opportunity to narrow the scope of the law’s immunity. Instead, the court in Taamneh focused almost entirely on the text of 18 U.S.C. §

2333, analyzing whether the complaint plausibly alleged that the social media companies had “aided and abetted” the IS group simply by employing “recommendation algorithms” that enable it to connect with the “broader public, fund raise and radicalize new recruits. And, in the process … profit from the advertisements placed on ISIS’ tweets, posts and videos.”

The Supreme Court held plaintiffs could not allege that the defendants “gave such knowing and substantial assistance to the IS group that they culpably participated” in the terrorist attack. Specifically, the court held these social media websites are no different than cellphones, emails or the internet generally — bad actors might use them in the commission of their crimes, but that does not mean the companies “aided and abetted” the bad actors. A “recommendation algorithm” that is simply part of the “infrastructure” of the website and is not directed specifically at the bad actor (e.g., the IS group) does not create liability for the website. In Gonzalez, the court remanded the case back to the 9th Circuit for reconsideration in light of the principles discussed in Taamneh.

By focusing on 18 U.S.C. § 2333, the court avoided direct consideration of Section 230. (It is not mentioned at all in the Taamneh opinion.) Nonetheless, the court’s requirement of a “concrete nexus” between the defendants’ alleged “assistance” and the bad acts might help inform lower courts as they consider new attempts to hold internet companies liable for harms allegedly created or facilitated by using their website.

Eric David is a partner at Brooks Pierce. He focuses his practice on business litigation, constitutional litigation, and media and communications law. ◆

David

PARALEGAL PRO BONO WORK MORE POPULAR THAN EVER

■ BY TERI SAYLOR

If Katie Riddle’s profession is in the law, then her heart is in pro bono work. And through volunteering she has charting her career.

Riddle’s pro bono work inspired her

to go to law school, and she recently enrolled at North Carolina Central University Law School.

“My pro bono work is one of the primary reasons why I pursued law school,” she says. “Although there are more pro-bono opportunities for paralegals than ever be-

fore, I believe I can do more substantive work and make more of an impact as an attorney.”

As a life products paralegal with Lincoln Financial Group in Greensboro, Riddle devotes considerable time to causes she loves, like Legal Aid of North

Paralegals volunteered their time and effort at a recent FEMA clinic in Morehead City, N.C. From left: Bonnie Dubier, Dawn LaRue, Johanna Owens, Rachel Royal and Bianca Simmons

Carolina’s Expunction Project and the N.C. Pro Bono Resource Center’s driver’s license restoration clinics. She has also served as a Guardian ad Litem for nearly three years. An avid dog lover, with two furry family members of her own, she volunteers with Triangle Beagle Rescue.

Two years ago, she began reporting her pro bono hours to N.C. Pro Bono Resource Center, quickly qualifying for its Honor Society’s first class of paralegals. She received the N.C. Bar Association’s Pro Bono Paralegal of the Year Award in 2022.

“I can’t imagine being in the legal field and not doing any type of pro bono work or serving others,” she said. “Having my knowledge and experience and knowing there are people that need legal support makes me feel obligated to help.”

The Pro Bono Resource Center thrives

on legal professionals like Riddle. A program of the Equal Access to Justice Commission, the center was launched in 2016, under Chief Justice Mark Martin. A key component of the center is its Pro Bono Honor Society, a way to publicly thank attorneys and paralegals who donate 50 hours or more annually to pro bono work.

The Honor Society for paralegals launched in 2021 with 11 paralegals listed. Last year, the society more than doubled in size, with 27. Riddle is on both lists.

The Pro Bono Resource Center’s organizers created the Honor Society in 2017 to harness the power of the private bar in addressing unmet legal needs, said executive director Sylvia Novinsky.

The program curates a myriad of pro bono opportunities and runs signature

programs like the Driver’s License Expunction program.

Over the years, the Center has hosted other projects and clinics, including legal services responses to disasters. Grants and private funding make these programs possible.

It was at a clinic that Novinsky met Rachel Royal, founder of Royal Touch Project Solutions and now the fulltime project and finance manager at the N.C. Equal Access to Justice Commission.

Royal, who has served as pro bono chair of the North Carolina Bar Association Paralegal Division for the last five years, has worked to get paralegals involved in pro bono opportunities, including speaking to paralegal organizations to help them understand the role they can

PRO BONO

play in pro bono work. At some firms, management takes the lead and provides paralegals with room in their workday to work on pro bono services.

“Many of the pro bono paralegals we had in the Honor Society this year were batch-reported by the law firms,” Novinsky said. "Many of them have dedicated pro bono programs with attorneys supervising the paralegals.”

Novinsky adds that the center’s staff is trying to reach paralegals who are doing volunteer work on their own, possibly with a nonprofit or with a solo practitioner in more remote counties where she believes pro bono legal professionals can make an impact, especially if there is no access to legal clinics or Legal Aid offices.

For paralegals who want to explore pro bono opportunities, Royal recommends they start at their own law firm. The first place for paralegals to start is within their own firm where they can foster a sense of teamwork and grow professionally.

State and local bar associations and paralegal associations often promote pro bono opportunities, and Royal often promotes paralegal service on the NC Bar Association’s Paralegal Division’s blog.

“I would like to see more paralegals feel empowered to approach their firm management and offer to start a pro bono program,” Royal said. “Even in a small firm, paralegals can be the driving force behind that.”

And anything paralegals can do in their regular jobs, they can do as a pro bono paralegal, she added.

“That might include staying in touch with clients, conduct-

ing client interviews, doing fact finding, and anything else that’s within the ethics rules and as long as they are not directly providing advice to a client,” Royal said. “Other tasks might include drafting complaints or doing client intake or screening calls to direct them to the most appropriate attorney or practice group to help them with their problem.”

Recent studies by UNCG in North Carolina and South Carolina reveal a comprehensive need for legal services for low-to-medium income people who don’t have the money to pay for an attorney. The top three areas of need are housing, family law and immigration, where paralegals can play an important role.

“One challenge is training volunteer paralegals in pro bono programs and offering them the appropriate amount of mentoring and supervision they need,” Novinsky said. “I think we’re all attempting to think through the unmet legal needs and the appropriate avenues for lawyers and paralegals to follow.”

For Royal it all goes back to the reason she became a paralegal in the first place. Years ago, she and her husband fostered his niece and nephew and had to go through the process of gaining temporary custody of them so they could enroll the children in school and buy them health insurance, among other things.

“We didn’t have the money for an attorney, so I had to figure out on my own how to draft a complaint and get it served. But in the end, we had to hire a lawyer to get the kids’ mother served, so I maxxed out a credit card to pay for it,” she said.

Royal remembers feeling helpless to

find a way to take care of the children as she and her husband struggled to get legal custody of them.

“It ended up working out, but it was very difficult and time-consuming,” she said. “I don’t want to feel that helpless again and I want to help other people not feel that way.”

She became a paralegal and started participating in pro bono work to help others get through personal crises too.

Today, the Pro Bono Resource Center team factors in paralegal volunteerism when it considers taking on projects, like pro bono clinics that help people regain their driver’s license, a program Riddle enjoys volunteering for.

For now though, Riddle is expecting her first child in August and has a full plate. Still working full time, she is taking her classes in the evenings and hopes to have her juris doctor by December 2025.

At her office, she created a public engagement community to foster volunteerism and pro bono service while serving as a resource to get her legal department involved.

And she’s still doing pro bono work, mostly through virtual programs.

“I think some people are cautious of getting involved in pro bono work because they fear the time commitment, or they may be inexperienced in some areas of law,” she said. “Many pro bono services can be tailored to meet individual needs, so if you only have three hours a week, you can find projects available for those three hours.”

Despite Riddle’s activities, she has managed to report 30 hours of pro bono work so far this year.

“It’s completely achievable, and I encourage people to not be overwhelmed by the idea of that time commitment,” she said. “Joining the Pro Bono Honor Society can be done, and it’s an accomplishment to be proud of.”

Novinsky

Royal

Family law path has proven rewarding for Clark

Jessica Clark enjoyed her career as a custom picture framer in Raleigh, but when the company she worked for shut its doors during the recession in 2009, she found herself in search of a job.

They say when a door shuts, another one opens, and for Clark, that door opened into the world of law. Last year, she celebrated her 10th anniversary as a paralegal at the Wunsch Law Firm in Harnett County, North Carolina.

In school, Clark learned the paralegal profession was a good fit for her, and she excelled in her studies.

“I graduated from Central Carolina Community College in December 2011

with an Associate in Applied Science degree in paralegal technologies,” she says.

“During my time at Central Carolina, I was a member of Phi Theta Kappa, on the dean’s list, and I received a paralegal scholarship.”

Clark, who is a family law paralegal, started working part time for Chad Wunsch in 2012. It was her first job after earning her degree.

“I was just excited to get my foot in the door,” she says. “I didn’t realize at the time that I would still be working for him, and continuing to do family law

Q&A: Jessica Clark

Jessica Clark

Fast Track Scheduling with the Carolina’s Top Litigator-Rated Mediators & Arbitrators

Q&A: Jessica Clark

n Continued from Page 37

work, over a decade later.”

She credits Wunsch with showing her the ropes and helping her succeed.

“If it wasn’t for working for such an amazing attorney, I don’t think I would be where I am at in my career today,” she says.

Family law challenges: Just as in any profession, the expectations and needs of clients or employers can be stressful. In the legal profession, these stressors can also come with an emotional aspect to them, especially in family law. I hear the concerns and fears our clients have. When they express tears and emotion, I am on the other end of the phone. It takes a special type of person to be able to last a long time as a family law paralegal. The emotional exhaustion and excessive worrying about your never-ending to-do lists, and those thoughts that can plague you in the middle of the night (“Did I pass along that message?” “Did my client get her visitation?” “Did I file

the motion?” “Did I call that client back yesterday?”) are daunting at times and can lead to burnout. It is important to strive for a good work-life balance. Find something you enjoy and just make the time to do it. I found that kickboxing is an exceptional way to alleviate the stress from a day at the office, a weekend away camping, or a nice soak in a hot tub.

Family law rewards: In this profession, the rewards are plentiful, although it can be hard to see that. I have seen delighted families fill their hearts through adoption. I have witnessed parents who have been alienated from their children get the contact and the reunification they deserved, and I have had clients simply say “thank you.' It’s nice to look at Christmas cards over the years and see kids I have never met grow up, or hear back from a client I haven’t spoken to in years, and learning the kids are doing great.

I have learned: I have more patience than I give myself credit for.

CAROLINA PARALEGAL NEWS BRIEFS

n Ward and Smith wraps up successful internship season

Ward and Smith has closed out another successful round of sta internships as part of their program begun in 2021 to promote diversity, equity, and inclusion in the legal eld.

is season’s class consisted of eight interns who worked with Ward and Smith attorneys and sta on a variety of legal projects, initiatives and events. ey are: Victoria Blount, paralegal intern and Emma Schemerhorn, o ce services assistant intern in Greenville; Ginger Jones, paralegal intern and Catherine Everett, o ce services assistant intern in New Bern; Tamara Burton, paralegal intern in Raleigh; Jessica Carroll and Wyatt Fields, paralegal interns, and Micaela Washington, o ce services assistant intern, in Wilmington.

e rm launched the internship program in collaboration with local high schools and commu-

nity colleges to provide students with real-world experience in a law rm. e interns work in the rm’s o ces across the state.

Ward and Smith has long o ered internships for law students, and its newest program focuses on support sta .

"We believe that providing a unique, professional experience to our interns helps to cultivate the next generation of diverse legal professionals," said Michael Christman, Ward and Smith's Director of Human Resources in a news release. "Plus, our local schools are brimming with talent, and we want to make sure those students have the opportunity to reach their full potential."

n Tara Jean Brown installed on NALS Board

Tara Jean Brown, a paralegal with Greene Law Firm in Greenville, S.C., has been named to

Knowledge wish list: I would like to have a better understanding of coding and complex Excel spreadsheet building. Karen Johnson, a paralegal at my firm, does exceptional work in coding. She is impressive, and we have put it to use in our daily work.

Advice for aspiring paralegals: Patience is the first tool you need. If you don’t have patience, this profession is not for you. Multitasking in a high-stress and fast-paced environment is a must in family law. These are the required skills in most paralegal job posts. Paralegals must be flexible in several ways – rules changes, procedure, and sometimes the way our bosses want things done. You must be open to constructive criticism and understand our clients don’t typically call us because they are happy. Most are stressed, angry, sad, and dealing with the most difficult times in their lives.

Spare time: I enjoy camping and fishing. I am a crafter and enjoy all things creative.

the board of the National Association for Legal Support Professionals (NALS) as a director. Brown also serves as president of the Legal Sta Professionals of South Carolina.

In her professional role, Brown has over 20 years of experience specializing in domestic law, estate planning, and tax law at Greene, with a focus on internal revenue law. She is a member of the South Carolina Bar Paralegal Division and has also served as president of Legal Sta Professionals of Greenville, along with various other o ces at both the state and local levels.

Brown is currently the chairperson for the Annual Greenville County Probate Court Seminar, open to legal support sta , paralegals and attorneys. Brown was awarded the 2015-2016 Legal Sta Professional of South Carolina Award of Excellence and was a 2016 NALS Award of Excellence Finalist. ◆

Investors Title Commercial Underwriting & Escrow Services

Committed to delivering personalized and accurate service, the commercial team, combined, represents more than 100 years of commercial real estate and underwriting experience.

Investors Title commercial specialists serve as the single point of contact through all aspects of the transaction – coordination of title services, underwriting, escrow, disbursements, closing, and post-closing.

COMMERCIAL UNDERWRITING SERVICES

Commercial title insurance and endorsements

Multi-state transactions

Multi-site transactions

Comprehensive services for local and national clients

CONTACT COMMERCIAL UNDERWRITING: commercialservices@invtitle.com | invtitle.com/commercial

CONTACT COMMERCIAL ESCROW: commercialescrow@invtitle.com | invtitle.com/escrow

COMMERCIAL ESCROW SERVICES

Earnest money management Settlement statement preparation Closing disbursement services

1099 reporting services

Commercial underwriting attorneys (left to right): Jane Barkley, Gates Grainger, and Taby Cruden

Escrow & settlement operations team (left to right): Amie Lindquist, Gina Webster, and Paul Denbaum - underwriting & escrow attorney

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers: 95% (2018)

( July-Oct. 2020)

Three consecutive years of high bar passage rate for first-time takers:

2020)

Three consecutive years of high bar passage rate for first-time takers: 95% (2018) 92% ( July-Oct. 2020) 92% (2019)

2020)

592-6068

� LawCareer@liberty.edu

� (434) 592-6068

� Liberty.edu/Law

/LibertyUniversityLaw