North Carolina Lawyers Weekly November 2023

WEEKLY

VOLUME 35 NUMBER 11

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

Putting together online campaign requires thought, creativity, care PAGE 4 NEWS Elon Law plans Charlotte program

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5 QUESTIONS WITH Andrew Tripp

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PROFILE p8 | Ernie Lee leads N.C. Conference of District Attorneys OPINION DIGESTS p12 | Roundup of rulings on state and federal appeals VERDICTS & SETTLEMENTS p19 | The latest roundup of concluded legal actions

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CAROLINA PARALEGAL NEWS p35 | New court administrative system challenges paralegals

LETTER FROM THE EDITOR

I

’m pleased to introduce a new format for People in the Law, a change that provides a fresher presentation of the hiring, promotion and employee recognition announcements at your firm.

The redesign allows a seamless submission of announcements, offers options that best fit your needs, and helps ensure the magazine can publish these promptly in the online and print editions.

People in the Law will feature two types of submissions: a standard format that conveys the basic information of an announcement and a featured profile that allows for an expanded presentation, including interesting information about a firm or an individual’s career and personal journey.

Both formats require the submission of a headshot. You also will be able to Chandler easily share the online published announcement on your favorite social media platform.

There will now be charges for these announcements, which can be handled via the online submission form.

If you would prefer a more customized approach, the magazine will continue to offer individually designed professional announcements. For information, please contact Associate Publisher Johnny Aguirre at jaguirre@ molawyersmedia.com.

I hope the new format is convenient for you and provides the options you need to announce hires, promotions and recognitions. If you have any suggestions, please reach out to me at rchandler@lawyersweekly. com. ◆ COVER PHOTO: DEPOSITPHOTOS.COM

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COVER STORY

SWEN

Carefully designed online campaigns boost firms B y he at h h a m a C he R

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“There are many benefits: audience and reach, an outlet to give a behind-the-scenes look and, of course, connection with clients, employees and friends of the firm.

Depositphotos.com

I

t’s 2023, and social media is king. With hundreds of platforms from which to choose, some more popular than others, social networking can be a powerful tool for its users, including law firms and individual attorneys.

Today, the attorney or firm that isn’t highly visible on Facebook, X (formerly Twitter), LinkedIn, YouTube or Instagram is the outlier. In addition to personal use — celebrating fitness goals, showing off that perfectly prepared meal, or just sharing one’s thoughts about anything — lawyers use social media for professional networking, business development, education, and marketing, among other purposes.

At Robinson Bradshaw in Charlotte, Chantal Sheaffer is the director of marketing and business development. She said that the firm, one of the larger in North Carolina, uses X, LinkedIn and Instagram to engage with its followers and enhance its brand. It shares formal firm news and updates while also featuring less formal content that introduces its followers to the firm and showcases its professionals. Recently, the firm touted its pro bono, diversity and inclusion efforts while celebrating the appointment of one of its attorneys, state Rep. Brandon Lofton, to the N.C. Courts Commission.

It also gives us a platform to tell our own story,” Sheaffer said.

Not social media, but still ...

Though not considered traditional social media, podcasts are becoming increasingly popular in legal circles. Michael Burney, director of business development and marketing for Collins & Lacy in Columbia, produces the firm’s podcast, “The Legal Bench.”

The podcast, going on its fourth year and nearing its 60th episode, says it offers “The latest, from the Attorneys Who Know” and provides an outlet for Collins & Lacy’s lawyers to demonstrate their knowledge of the firm’s multiple practice areas.

Burney, who has a background in communication and broadcasting, said the goal of the podcast’s audio-only episodes — many of which are born from attorneys’ written blogs — is to shine a light on the industries the firm serves in defense litigation and its talented defense lawyers.

“It serves as a strategy to showcase content relevant to our different practice groups … while also providing an outlet for our attorneys to demonstrate their knowledge,” he said. “Also, it’s just an interesting way to make and cultivate new contacts.”

Recent podcast titles include

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NEWS “How Accident Reconstruction Engineers Work Effectively with Defense Attorneys,” “Trucking and Marijuana,” and “DELTA 8 THC in Consumer Products.”

“We try to feature content that’s of interest to our clients as well as to the general public,” Burney said.

Potential pitfalls For all the benefits of social media, it is not without risk.

Lawyers must be careful to avoid legal pitfalls and ethical violations.

In 2012, then-South Carolina attorney Dannitte Mays Dickey was reprimanded for posting misleading statements on several websites, including a social media site. (He is listed by the state bar as not in good standing and living in California.)

According to court records, Dickey ran afoul of the state’s ethics Burney rules when he, among other flubs, lied about handling matters in federal court, listed about 50 practice areas in which he had little or no experience, and labeled himself a “specialist” when the court had granted no such designation. According to the South Carolina Supreme Court, Dickey relied partly on non-attorney web designers “who assured him that the advertisements would comply with respondent’s ethical requirements.”

Another attorney, this one in California, was sanctioned several years ago for Photoshopping herself amid A-list celebrities and posting the images on the internet. A state bar judge noted that the superimposing of her image onto images of George Clooney, Barack Obama, Kim Kardashian

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Video: See Michael Burney, director of business development at Collins & Lacy, discusses how law firms can develop episodes for a podcast in a video at nclawyersweekly.com or by scanning the QR code here.

and others — and posting the pictures to her professional website — were intended to “confuse, deceive, and mislead the public.”

Not all social media blunders are so grand, however. Some are more like teachable moments.

Before beginning work at Microsoft, Raleigh attorney T. Greg Doucette operated his own firm, with a heavy focus on criminal defense. With more than 100,000 X followers and having been verified before the blue check mark was for sale, Doucette was what one might consider a prolific tweeter (when X was known as Twitter), often posting about current and former cases. He was cautious about running afoul of the Rules of Professional Conduct, using pseudonyms and being intentionally vague about case details so as not to identify his case or client.

But at least once, by his admission, Doucette “screwed up without realizing,” sharing a case photo that was recognizable by those in the neighborhood who read the accompanying viral story.

Doucette immediately contacted the client and his mother and obtained a publicity waiver that he says he should have gotten in the first place.

“I was just so [angry] about the details that I ranted about it before thinking about the repercussions of vitality,” Doucette said. “I was more cautious after that.”

Sheaffer of Robinson Bradshaw didn’t go into detail but said that

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COVER STORY the firm, which manages its own social media presence, has a social media policy in place to help avoid common pitfalls.

A little advice Emails inquiring about state social media guidelines were not returned by the North Carolina State Bar and Courtney Troutman of the South Carolina Bar. While American Bar Association Rules do not expressly define social media ethics, the organization offers recommendations that can be used. For example, someone who “consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client," according to ABA Model Rule 1.18(a). This might come into play when a lawyer making a social media post unintentionally uses language that forms an attorney-client relationship or provides legal advice, according to a National Law Review article.

"The best way to avoid this is by expressively using verbiage that states where the lawyer is licensed and that their content isn't intended to form an attorney-client relationship,” the article reads.

In addition to leaving no room for doubt about licensing and representation, the article’s author offers five more tips for avoiding social media mishaps that could potentially be more than spilled milk.

Perhaps the most applicable is that confidentiality is key. Pursuant to ABA Rule 1.6(a), “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Even if the information is public record, attorneys are cautioned against sharing even hypothetical situations that might run afoul of confidentiality.

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Lawyers should choose a connection wisely, ensuring they know who they accept as a “friend” on social media.

“Lawyers have unintentionally presented a conflict of interest with their clients strictly based on social media contacts,” the NLR article states. “The same line of logic applies in relation to judges and avoiding the appearance of favoritism or bias.”

Additional steps to take As in the Dickey case, lawyers should be cautious when advertising on the internet. False or misleading communications regarding a lawyer or their services violate ABA Rule 7.1. The line between a social media post and an advertisement might be a thin one, so attorneys should appropriately disclose all relevant information and refrain from misleading readers.

Lawyers should also keep in mind that they need to police not only themselves, but nonlawyer staff members, lest they be held responsible for a post they didn’t make or perhaps even know about.

Burney, who runs the podcast for Collins & Lacy, also manages the firm’s social media accounts. He said that while the firm employs an outside agency to create graphics and post content, anything that is

Depositphotos.com

posted has undergone strict scrutiny.

“Nothing goes out that doesn’t come from us and is not approved by our management,” Burney said.

Last, many experts opine that it is a good idea for lawyers to keep their personal profiles private, limiting the number of people who can see the profile and lowering the chances of inadvertently running afoul of ethics rules.

Saad Gul, a North Carolina cyber law attorney, knows about staying safe online. Gul runs a personal X account with a clear legal flavor, and posts with an abundance of

caution. He clearly states in his bio that he is “not your lawyer” and that his posts are not legal advice.

His method of remaining on the right side of ethics rules is one of employing a degree of common sense.

“The rule I follow is that I basically err on the side of caution,” Gul said. “I try to stay away from politics … to be as even as possible to not alienate friends or potential clients. You do have to realize that you can be as careful as you want to be, but there are some people who will take offense to something you say.” ◆

“There are many benefits: audience and reach, an outlet to give a behindthe-scenes look and, of course, connection with clients, employees and friends of the firm. It also gives us a platform to tell our own story.”

— ­C hantal Sheaffer, Robinson Bradshaw director of marketing and business development

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PROFILE

Lee, conference offer key support for DAs

W

B y R o s s C h a n d l e R • r c H a n d l e r @ l a w y e r s w e e K ly . c o m

hen a district or assistant district attorney stands before a judge and jury making a case, Ernie Lee’s presence is felt there as well.

As chairman of the North Carolina Conference of District Attorneys, Lee leads the state-funded professional and technical organization that supports prosecutors. The conference helps with cases from training the prosecutors presenting them to ensuring that they have specialized lawyers who can help with — or even present — complex issues. Its presence also is felt in the General Assembly, which Lee the conference lobbies for the support that prosecutors need.

Training is one of the conference’s key services that Lee singled out.

“We have training programs that are invaluable,” he said, adding that they are often provided in conjunction with the Administrative Office of the Courts or the Institute of Government at the University of North Carolina at Chapel Hill. “The law changes all the time. The training that we receive keeps us updated.”

Staffing is another key resource the

VIDEO: See Ernie Lee explain how the North Carolina Conference of District Attorneys has personally helped him prosecute cases in a video at nclawyersweekly. com or by scanning the QR code here.

conference pushes for. As an example, Lee cited the surge in cases tried in juvenile court now that 16- and 17-year-olds cannot be routinely charged as adults.

Juvenile proceedings take more time and effort than those in District or Superior courts.

On the other end of the spectrum, DAs need help supporting crime victims. North Carolina has a strong victims’ rights law, and help for victims comes from DAs’ offices.

“The act, which is a good law, requires a lot of time and resources and effort to implement,” Lee said.

Staffing — not just the number of positions but the pay rate as well — comes through General Assembly appropriations. Lee is mindful of those factors.

“Our priorities are we are trying to increase the allotments for assistant district attorneys,” he said of one of this year’s lobbying objectives.

The minimum salary for assistant district attorneys is set at just below $47,500, leaving private firms and other government agencies positioned to poach prime candidates.

“You have to be able to pay them and compete with other government agencies and private law firms,” he said. “We want to be able to attract the best. The state of North Carolina should be represented by experienced people, too.”

Changing times The criminal justice system is undergoing many changes. Policies such as threestrikes and mandatory-minimum sentencing laws are declining in use. Some jurisdictions are decreasing emphasis on prosecuting several classes of nonviolent crimes. The actions of police officers also are increasingly subject to scrutiny.

“I have not seen that national trend reflected in North Carolina,” Lee said. “It’s not to say that every district attorney has the exact same policy. That is not the case. … (But) I’ve seen consistency throughout the state.”

The conference has been caught up in the struggles. One metro newspaper reported that the agency has opposed efforts such as those of the state’s Innocence Inquiry Commission and payments to those who have been wrongly See Page 22

ERNEST L. LEE AT A GLANCE • Place of birth: New Bern

Prosecutorial District, since 2011.

Californian.”

• Education: Atlantic Christian College, bachelor’s, 1982; Campbell University School of Law, Juris Doctor, 1985.

• Civic engagement: Sunday school teacher, Bethlehem Baptist Church, Jacksonville; The Gideons member since 1994; retired major, Judge Advocate General’s Corps, Army Reserve.

• Biggest career challenge: “My biggest career challenge was my first capital murder trial. I served second chair to the elected district attorney at that time. I found out how much preparation was required, how much hard work, and then just the whole gravity of the capital-trial process.”

• Firms affiliated with: Pritchett, Cooke and Burch of Windsor, 1985-86; assistant district attorney, 4th Prosecutorial District (later redesignated the 5th Prosecutorial District), 1986-2010; district attorney, 5th

8

• First job: “My first job was as a paper delivery boy at Edwards Air Force Base in California. I delivered The Bakersfield

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FEATURE

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QUESTIONS WITH ...

Andrew Tripp

B y R a s m u s s. J o R g e n s e n • r j o r g e n s e n @ m o l a w y e r s m e d i a . c o m

A

ndrew Tripp has made a career out of advising high-level state officials on legal matters.

After a decade with the North Carolina General Assembly — including as chief of staff to Senate leader Phil Berger — he could not pass up the chance to serve the University of North Carolina System and its almost quarter-million students.

At a time when institutions of higher learning face new realities in admissions and athletics alike, North Carolina Lawyers Weekly asked Tripp to share some insights from his nearly three years as the UNC System senior vice president and general counsel.

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VIDEO: See Andrew Tripp discuss the steps the University of North Carolina System is taking to comply with the Students for Fair Admissions Supreme Court decision in a video at nclawyersweekly.com or by scanning the QR code here.

1

NOVEMBER 2023

How do you and the leaders you work alongside balance the competing needs and interests of a university system that

ranges from research universities to more localized schools to historically Black universities?

A. President Peter Hans sets the tone for this challenge based on his more than two decades serving the university. First, we honor each campus’s history while ensuring that all institutions are rowing in the same direction. Second, the UNC System has evolved into a full-service solution that can meet any high school graduate where they are and provide them an affordable education tailored to what they need. President Hans has buy-in from elected leaders and camSee Page 10

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pus stakeholders from all over North Carolina on that key concept. We think of it as an orchestra: The trumpets and the drums are not competing against each other; they’re working together to make music.

2

In light of the U.S. Supreme Court’s decisions on affirmative action, what steps have you urged the leadership of the University of North Carolina System and the individual schools in it to take, and what have they done to follow your guidance?

A. Our main thing is providing worldclass education to every kid who wants to come here at the lowest cost we can. We’ve directed our campuses initially to remove race and ethnicity from the information considered by admissions officers. We’ve directed them next to think about ways that our application and admissions processes need to change to comply with the decision and federal law. It is a process, but we are lucky to have professionals all over the UNC System whose main thing is getting these things right.

3

What interests or rewards led you to join the university system rather than work in private practice?

A. Most lawyers probably agree with me that professional opportunities are some part skill and talent, and the rest is grace or luck. I have been lucky in my career to work for people who believed enough in me to offer me opportunities to be part of something bigger than myself.

It started at Elizabeth City, with the Honorable Terrence W. Boyle. That

I am surrounded by excellent professionals across North Carolina. I can best serve the university leadership and my colleagues by listening to them on the legal issues they face, spotting trends and acting accordingly. same thing happened when President Hans invited me to compete for my current position. It meant I would have to leave the North Carolina Senate after a decade, an institution and people who I treasure to this day, but the opportunity for a new challenge and fresh thinking at the UNC System around its 50th anniversary was the right move.

4

What was the best advice you received, or the best advice you could give, for being successful as the university system’s counsel?

A. Listen first. Judge Boyle told me once that the best thing I could do is stop talking and start listening. The UNC System’s counsel position is lucky in that there are nearly 100 lawyers who work daily to serve their respective campuses and our affiliate institutions. The judge’s advice holds true: I am surrounded by excellent professionals across North Carolina. I can best serve the university leadership and my colleagues by listening to them on the legal issues they face, spotting trends and acting accordingly. If an instance arises requiring system-level attention, we as strategic lawyers work to develop rigorous, actionable advice to support our clients. It starts with listening.

5

What new role has your office found itself playing due to athletic conference realignments to maximize college football broadcast revenue and athletes’ newfound ability to profit from their name, image and likeness?

A. No issue in university law that garners more attention than athletics.

For many reasons, including NCAA compliance, the operation of athletics departments is left to the individual campus administrations. However, these two topics do have systemwide implications in a couple of respects.

The NIL field has caught the attention of lawmakers, and the [UNC] System office can advise on the right balance between protecting student-athletes and ensuring that our athletics departments continue to thrive, so those student-athletes have somewhere to play. Systemwide, UNC lawyers help to navigate the murky intersection of state regulation and NCAA compliance. As for athletic conference realignments, much of the work of the lawyers is done on a campus-by-campus basis, and our role is to advise system leadership of the legal implications of national and state events as they develop. It is a fast-moving field, so there are not many dull days.◆

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OPINIONS

Murder appeal unsuccessful despite counsel's contradictory statements

A

B y R a s m u s S. J o r g e n s e n • r j o r g e n s e n @ m o l a w y e r s m e d i a . c o m

man who attempted to have his first-degree murder conviction overturned was unsuccessful in convincing the North Carolina Court of Appeals that his attorney and the Gates County Superior Court made significant errors.

Terrell Jermaine Parker was convicted in 2022 and sentenced to life without parole after fatally shooting Isaac Jermaine Hawk on Dec. 21, 2018. Parker and Hawk had a contentious relationship and initially met by chance at a barbershop that night and had a brief conversation about whether Hawk had claimed to be the father of Parker’s child.

Later that night, when Hawk was home, Parker made a phone call to a friend of Hawk and asked to speak with Hawk, who then said Parker was on his way to the residence.

When Parker arrived, the two began arguing, and Parker began walking backward down the driveway. After a few minutes, a fight broke out, though witnesses could not tell who started it.

Parker continued walking backward, while Hawk, with his hands up, walked toward Parker, who then pulled out a gun and shot Hawk five times, killing him.

Parker claims that the first-degree murder conviction was a result of ineffective assistance of counsel and the trial court erring in its jury instructions and not failing to intervene ex mero motu in the state’s closing argument.

His attorney was ineffective at two separate times, Parker claimed. In the first claim, Parker argued his attorney conceded his guilt without his consent. During closing arguments, he rhetorically asked if Parker’s use of force was excessive.

“Consider all the things that were happening, consider he is going 116 feet backward.

You decide whether the use of force is excessive. But if it was excessive, that is voluntary manslaughter. That is not first-degree murder. That is not second-degree murder.

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His attorney was ineffective at two separate times, Parker claimed. In the first claim, Parker argued his attorney conceded his guilt without his consent. During closing arguments, he rhetorically asked if Parker’s use of force was excessive.

That is voluntary manslaughter,” the attorney said.

That statement did not imply guilt, the Appeals Court said.

Second, Parker claimed his attorney undermined his testimony in the closing argument. Parker testified that he had fallen asleep in a friend’s car and then woke up to realize he was at Hawk’s home. But Parker’s attorney contradicted that testimony by saying that Parker intentionally went to Hawk’s home to finish the initial conversation, not intending to get into a fight.

While in fact a contradiction of Parker’s testimony, the attorney’s statement does not rise to the level of being incoherent or lacking any positive advocacy, as required

by State v. Moore and State v. Davidson.

Rather, the attorney was actively working to negate the elements of first-degree murder.

The trial court erred, Parker said, by not instructing the jury on stand-your-ground laws and by instructing the jury on the aggressor doctrine, which holds that a person initiating a physical confrontation loses the right to claim self-defense. The Appeals Court said instructing on the aggressor doctrine was warranted, in part, because of testimony indicating that Parker might have initiated the fight during a phone call before arriving at the home. The trial court also did

NOVEMBER 2023

not need to instruct on stand-your-ground laws because they only apply in spaces where a person has a lawful right to be, and there was limited evidence to that effect in this case.

Finally, Parker claimed the trial court was required to intervene on its own accord when the state suggested that the punishments for second-degree murder and voluntary manslaughter were not enough for what Parker had done. Again, the Court of Appeals disagreed with Parker, citing State v.

Walters, which holds counsel has the right during closing arguments to inform the jury of the punishment prescribed by law.

“While suggesting that the minimum sentence would not be severe enough punishment might run afoul of the unspoken rules of courtroom etiquette, it is not, in fact, against the law,” wrote Judge Julee Flood in the unanimous opinion, with Chief Judge Donna Stroud and Judge Michael Stading concurring.

The state was represented by Special Attorney General Robert C. Montgomery.

The North Carolina Department of Justice declined to comment. Durham attorney Sarah Holladay, who represented Parker, did not immediately respond to requests for comment.

The case is State v. Parker, COA23-90 ◆

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OPINIONS

To view additional opinion digests, visit www.nclawyersweekly.com Civil Practice Subject Matter Jurisdiction — Custody Determination — Appropriate Forum The trial court lacked subject matter jurisdiction over this custody determination.

We vacate the custody order and remand the matter to the trial court for a hearing to determine whether it possesses subject matter jurisdiction over this custody determination.

Mother and father, who had one minor child, resided in Perquimans County while they were married. The Perquimans County Department of Social Services investigated father in 2018 because the child had allegedly been left in a locked vehicle, while father exercised at the gym

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and shopped at an Ollie’s Bargain Outlet.

DSS determined father had a lapse in judgment and closed the investigation. In 2019, mother became concerned because father continuously insisted upon showering with the child. Mother purportedly observed the child touching father’s erect penis. Four days later, mother removed the child and herself from the marital home and moved to Wake County.

Mother and father entered into a Separation and Property Settlement Agreement where they agreed that mother would have legal and physical custody of the child, and father agreed to “accompanied visitation” with the child “at times and locations agreed upon by the parties at minimum of twice a month for six-to-10hour periods.” The agreement specified See Page 14

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OPINIONS Continued From Page 12 neither mother nor father were permitted to leave North Carolina with the child without first providing written notice to the other parent, exempting certain enumerated family members who reside in Virginia and Kentucky.

Mother filed a complaint for child custody and attorneys’ fees in Wake County and filed a complaint and motion for a domestic violence protective order in Wake County. An order of protection and a domestic violence protection order were granted. Without alerting father in writing, mother moved with the child to Utah and filed a petition for custody in Salt Lake County, Utah.

A trial court subsequently required mother to return the child to North Carolina for the duration of the parties’ custody trial in Perquimans County. The trial court then granted joint custody to the parties and prohibited the mother from taking the child outside North Carolina except to visit with her family in Virginia. Mother appealed, arguing the trial court lacked subject matter jurisdiction over the child’s custody determination.

The record does not indicate whether North Carolina possessed subject matter jurisdiction over the custody determination of the child. The trial court found mother had resided in Utah since May 2020, which is more than six months prior to the commencement of this Perquimans County child custody matter by father in November 2020. According to the terms of the Separation Agreement, the child was residing with mother during that period. Further, the record is devoid of any findings from the court in Utah determining whether North Carolina is the more appropriate forum and Utah’s decision to decline to exercise its jurisdiction. Without this evidence, the trial court’s custody order must be vacated for lack of subject matter jurisdiction and remanded for a hearing to determine whether it possesses subject matter jurisdiction over this custody determination. The trial court must find and resolve evidence concerning the child’s home state in the six

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months prior to father filing his motion for child custody in North Carolina. In the alternative, the trial court must include findings from the court in Utah indicating its decision to decline to exercise its jurisdiction and its determination concluding North Carolina is the more appropriate forum.

Vacated and remanded.

Rook v. Rook (Lawyers Weekly No. 011175-23, 10 pp.) (John M. Tyson, J.) Appealed from Perquimans County District Court (Meader W. Harriss III, J.) Melissa L. Skinner, for the plaintiff-appellee; Woodruff Family Law Group, by Jessica S. Bullock, for the defendant-appellant; Rose & Johnson PC, by K. Brooke Johnson, for the defendant-appellant. North Carolina Court of Appeals

Contract Quiet Title — Operating Agreement — Interpretation of Deeds Company presented enough evidence to establish a genuine issue of material fact in action over its creation, ownership, and management.

Defendants’ motion for summary judgment denied.

This action arose out of disputes concerning the creation, ownership, and management of plaintiff Mary Annette LLC. Defendants moved for summary judgment on their counterclaim that sought to quiet title to part of the property that Mary Annette was formed to develop.

Mary Annette was formed for the purpose of developing a piece of land in western North Carolina. The company’s operating agreement names three members, Mountain Girl Ventures, Twilight Developments Inc., and Ozzie 1 LLC, and states that each has a one-third interest.

Terri Lynn Crider wholly owns Mountain Girl Ventures; Jorge and Dana Cure together own Twilight Developments; and Michael Washburn and Christine Sheffield together own Ozzie 1.

Before April 2021, Crider owned a twothirds interest in the real property at issue, and her brother Joey owned the remaining one-third. On the first day of that

month, the Crider siblings executed deeds of transfer granting to Mary Annette their respective interests in “Tracts C-1, C-2, C-3, C-4 and C-5 as they appear on that certain plat of survey titled, ‘Final Plat for Smoky View Cottages and RV Resort’ by L. Kevin Ensley P.L.S. dated 2/2/21 drawing no.

B-004- 21, recorded in Plat Cabinet D, Slot 1234 Haywood County Registry.” Mary Annette then executed a deed of trust on tracts C-1, C-2, and C-4 to secure a $550,000 loan from HP Investment Group Inc. 401(k). Finally, Mary Annette transferred to Crider the entirety of tracts C-3 and C-5.

The parties disagreed as to what exactly the Crider siblings intended to transfer when they deeded “C-4” to Mary Annette.

In their sixth counterclaim, defendants asked us to declare that the Crider siblings remain the rightful owners of the cabins and recreational vehicle (RV) spots located within the perimeter of tract C-4.

The sole question presented was whether the deeds executed by the Crider siblings transferred the cabins and RV spots within tract C-4 to Mary Annette.

Defendants contended the deeds transferred the common area surrounding these individual units but not the units themselves. Mary Annette, meanwhile, maintained it owns the common area and the units.

The parties have disputed this issue once already. Before the case was designated to the Business Court, Mary Annette moved for a preliminary injunction to bar Crider from handling rentals of its property.

Judge George Bell granted that motion and made several factual findings, including that Mary Annette had purchased all cabins and RV spots within tract C-4 from the Crider siblings. Mary Annette contended that Judge Bell’s order controls here based on the principle that one Superior Court judge may not overrule another’s conclusions of law. We disagree.

Interpretation of a deed is often, but not always, a pure question of law. When a deed is unambiguous, its interpretation is a question of law, and the court must decide that question without considering evidence outside the deed. But when “the language is ambiguous so that the effect

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OPINIONS of the instrument must be determined by resort to extrinsic evidence that raises a dispute as to the parties’ intention, the question of the parties’ intention becomes one of fact.” At no point did Judge Bell hold that the deeds at issue are unambiguous. Rather, he found as a fact that Mary Annette had purchased the individual units within tract C-4 and that the deeds had transferred the Crider siblings’ interests in those units to Mary Annette. This preliminary factual finding is not binding, and we are free to rule on defendants’ motion for summary judgment without risk of overruling Judge Bell.

We cannot resolve this factual dispute at the summary judgment stage. For now, we need only decide whether Mary Annette has presented enough evidence to establish a genuine issue of material fact. It has. Viewed in the light most favorable to Mary Annette, the evidence supports the conclusion that tract C-4 includes both the common area and the individual units. Summary judgment is

therefore not proper.

Denied.

Mary Annette LLC v. Crider (Lawyers Weekly No. 020-069-23, 9 pp.) (Adam M. Conrad, J.) 2023 NCBC 69. McLean Law Firm, P.A., by Russell Lyway McLean, for plaintiffs Mary Annette, LLC, Jorge Cure, Dana Cure, Twilight Developments, Inc., Ozzie 1, LLC, Michael Washburn, and Christine Sheffield; Smathers & Smathers,

by Patrick U. Smathers, for defendants Terri Lynn Crider and Mountain Girl Ventures, LLC. North Carolina Business Court

Corporate Derivative Claim — Breach of Fiduciary Duty — Judicial Dissolution — Business Judgment Rule Plaintiffs fail to state a derivative claim for breach of fiduciary duty, as their conclusion that defendants acted in bad faith and self-interest was based on their own

assumptions, not alleged facts.

Plaintiffs’ motion to dismiss is granted as to their claim for dissolution, while defendants’ motions to dismiss are granted as to plaintiffs’ derivative claim for breach of fiduciary duty.

Plaintiffs, shareholders in a family-owned corporation, sought a judicial dissolution of the business after their unsuccessful attempts to redeem their interests. The case was before us on two motions to dismiss, one filed by the corporate defendant, Blue Gem Inc., and the other filed by the individual defendants, Stephen B. Cone and Elaine Bulluck.

Blue Gem Inc., a North Carolina corporation, is a commercial real estate holding company. It was incorporated by Alan Cone Sr. (Senior), a “wealthy descendant of the Cone Mills family” as a C corporation. Senior used Blue Gem to accumulate wealth at the corporate tax rate and rarely took dividends. Upon his death in 2019, See Page 16

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OPINIONS Continued From Page 15 Senior left his interest in Blue Gem to a trust for the benefit of his children.

Plaintiff Billy Cone, plaintiff A Cone, defendant Bunny Bulluck, and defendant Steve Cone are Senior’s children. During his lifetime, Senior was a beneficiary of family wealth that he invested in several businesses, including Blue Gem. Because Senior had other sources of income, he did not take dividends from Blue Gem. Instead, Senior allowed his investments in Blue Gem to grow and to be taxed at the corporate rate.

Plaintiffs alleged that Steve and Bunny are “acting together as a block” with respect to decisions regarding Blue Gem. Plaintiffs’ inability to access the principal of their inheritance, as well as their disagreement with their siblings over tax issues, have caused plaintiffs to conclude that “this is not the business [to benefit the family and avoid strife] that Senior foresaw.”

Plaintiffs’ amended complaint contained two claims, one for judicial dissolution, and a second for breach of fiduciary duty asserted derivatively on behalf of Blue Gem. By statute, dismissal of the derivative claim requires court approval.

However, dismissal of the claim for judicial dissolution does not. According to Rule 41(a), plaintiffs may unilaterally dismiss a claim “at any time before the plaintiff rests his case[.]” N.C. R. Civ. P. 41(a)(1).

Accordingly, plaintiffs’ motion serves to dismiss their judicial dissolution claim, without prejudice.

We grant the motions to dismiss with respect to the derivative claim for breach of fiduciary duty and dismiss that claim, with prejudice, determining that plaintiffs failed to state a derivative claim for breach of fiduciary duty against Steve and Bunny.

Plaintiffs argued that their allegations that Steve and Bunny are acting in bad faith without using “any business judgment” are sufficient to satisfy their pleading obligations. They accused Steve and Bunny of refusing to address Blue Gem’s tax status because of their “self-interested desire” to force A Cone and Billy to sell shares at a substantial discount. Plaintiffs argued

16

that leveling this accusation is sufficient to meet their pleading requirement. We disagree. Plaintiffs’ conclusion that Steve and Bunny have acted in bad faith and self-interest is based on their own assumptions, not alleged facts. Nowhere in the amended complaint did plaintiffs allege facts suggesting that Steve and Bunny are attempting to force them to sell their shares. To the contrary, plaintiffs alleged that it is they who want out, but their exit proposals have been voted down. Without the requisite factual allegations of bad faith, plaintiffs cannot overcome the business judgment rule.

Granted in part and denied in part.

Cone v. Blue Gem Inc. (Lawyers Weekly No. 020-070-23, 20 pp.) (Julianna Theall Earp, J.) 2023 NCBC 70. Brooks, Pierce, McLendon, Humphrey & Leonard LLP, by Clinton Shepperd Morse and Amanda Hawkins, for plaintiffs Alan W. (“A”) Cone, Jr. and Louis (“Billy”) Cone; Block, Crouch, Keeter, Behm & Sayed, by Christopher K. Behm, for defendant Blue Gem, Inc.; Ward and Smith, P.A., by Jenna F. Butler and Joseph Anthony Schouten, for defendants Stephen B. Cone and Elaine Bulluck. North Carolina Business Court

Criminal Practice Constitutional — Right to Counsel — Motion to Withdraw — Interaction With Witness After an out-of-court interaction with a prosecution witness, defense counsel moved to withdraw. However, the trial court conducted an adequate colloquy with defendant, and defendant knowingly and voluntarily waived any conflict of interest.

We find no error in defendant’s convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted armed robbery, conspiracy to commit armed robbery and possession of a firearm by a felon. We dismiss — without prejudice — defendant’s claim of ineffective assistance of counsel.

Prior to her testimony at defendant’s trial, defense counsel observed prosecution witness Williams crying in the hallway

outside of the courtroom, approached her, and asked if she would like to talk to an attorney. The morning after this conversation, defense counsel asked the public bar if anyone would like to talk to her, and an attorney said he would advise her.

After this exchange, the trial court addressed Williams outside of the presence of the jury in an unsworn conversation. During this conversation, Williams stated that she was never at the scene of the shooting and attempted robbery, and that she did not wish to take the witness stand and perjure herself by claiming she was present. The trial court permitted the state to speak with Williams during the lunch recess, and after this recess, Williams was again willing to testify without an attorney.

Williams ultimately testified that she was present at the scene and that she called 911. Outside of the jury’s presence, the trial court heard defense counsel’s verified motion to withdraw as counsel.

Counsel argued that he was “an essential, necessary witness to [defendant’s] case” because of “what [he] witnessed [outside of the courtroom] as an officer of the court, and what [the judge] witnessed in [the courtroom].”

Counsel also moved to withdraw on the basis that a conflict of interest was created when the state alleged that he “tampered with the witness” and “chilled her testimony[,]” and that he could not defend both defendant and himself.

Defendant also asked that the trial court declare a mistrial. However, the trial court denied counsel’s motion to withdraw and motion for a mistrial.

Defense counsel cross-examined Williams in the presence of the jury, and during this cross-examination, Williams admitted that she lied to the court about not being at the scene of the crime and about not calling 911. However, despite the court’s permission to do so, counsel did not question Williams about their hallway conversation. He later renewed the motion to withdraw based on his alleged conflict of interest, but this motion was again denied.

The record demonstrates that the trial court conducted an adequate inquiry to

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OPINIONS determine whether there existed such a conflict of interest that the defendant would be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the Sixth Amendment. The transcript also reflects that the trial court ensured defendant fully understood the consequences of a potential or actual conflict and properly exercised its discretion in deciding whether a full-blown evidentiary proceeding was necessary or whether some other form of inquiry was sufficient. Furthermore, defense counsel indicated he had also given defendant such an explanation.

The only remaining determination is whether defendant made a knowing, intelligent, and voluntary waiver of the potential conflict. Defendant explicitly stated, after witnessing the entirety of Williams’s testimony, including his counsel’s cross-examination of her, that he did not wish for his counsel to withdraw. The trial court conducted an adequate inquiry, and defendant voluntarily, knowingly, and intelligently waived his right to conflict-free counsel.

No error in part; dismissed without prejudice in part.

State v. Bridges (Lawyers Weekly No. 011140-23, 16 pp.) (Hunter Murphy, J.) Appealed from Johnston County Superior Court (James Ammons, J.) Terence Friedman for the state; Katherine Jane Allen for defendant. North Carolina Court of Appeals

Criminal Practice Disposition Order — Juvenile Delinquent — N.C. General Statutes § 7B-2501(c) Juvenile John Bailey appealed the trial court’s disposition order placing him on probation for 12 months following the trial court adjudicating him delinquent for simple assault.

We vacate the trial court’s disposition order and remand for a new disposition hearing in accordance with N.C. Gen. Stat. § 75-2501(c).

The juvenile and Michael Anderson engaged in a physical altercation over seating on a school bus. The parties have

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a history of conflict over who sits where on the bus. Approximately one week before the subject incident, Anderson warned the juvenile “if [you] pull me out of the seat again, I will do something about it.” At the adjudication hearing, testimony conflicted as to whether seats were assigned by the school or were considered “assigned” by the students who customarily sat in a particular seat. The juvenile testified he asked Anderson to leave his seat, but Anderson did not move. Anderson testified the juvenile just walked up to him, and Anderson assumed he was there to take his seat again.

Anderson kicked the juvenile in his lower stomach or groin area. The juvenile then punched Anderson on or around his head around 10 times.

The school resource officer reviewed the video and called Anderson into his office to have him explain what happened. Subsequently, a juvenile petition charging the juvenile with misdemeanor assault was filed. The adjudication and disposition hearings were held in immediate succession. A video of the incident recorded by the bus cameras was presented at the adjudication hearing. The trial court adjudicated the juvenile delinquent for the offense of simple assault and then proceeded to the disposition hearing wherein it entered a Level 1 Disposition placing the juvenile on probation for 12 months and ordering him to participate in and complete various programs and conditions.

The juvenile appealed pursuant to N.C. Gen. Stat. § 7B-2602, arguing the trial court erred in entering the disposition order and that it must be vacated since the trial court failed to comply with the requirements of N.C. Gen. Stat. § 7B-2501(c) under which the court must select a disposition designed to protect the public and to meet the needs and best interests of the juvenile based on the seriousness of the offense; the need to hold the juvenile accountable; the importance of protecting the public safety; the degree of culpability indicated by the circumstances of the particular case; and the rehabilitative and treatment needs of the juvenile indicated by a risk

NOVEMBER 2023

and needs assessment.

The juvenile alleged the trial court failed to properly consider and apply the five factors identified in the statute prior to determining his disposition and failed to issue a written order indicating the consideration of these factors. The juvenile argues this constitutes reversible error. We agree.

The trial court received into evidence a predisposition report, risk assessment, and needs assessment from the juvenile court counselor as well as a Youth Assessment and Screening Instrument full narrative assessment which contained much information from which the trial court could have made the necessary findings required by N.C. Gen. Stat. § 7B-2501(c). However, the trial court did not make any written finding regarding the five factors as required. The court used the preprinted Juvenile Level 1 Disposition Order form and checked the boxes finding that it received, considered, and incorporated by reference the predisposition report, risk assessment, and needs assessment; however, the trial court made no independent findings. The section titled “Other Findings” was left blank. This section must be filled with findings made by the trial court regarding the five factors required by the statute, otherwise it is reversible error.

Because the trial court must make findings addressing the statutory factors in N.C. Gen. Stat. § 7B-2501(c), we vacate the disposition order and remand for a new dispositional hearing and entry of an order that includes written findings showing its consideration of the five factors contained in N.C. Gen. Stat. § 7B-2501(c).

Vacated and remanded.

In the Matter of N.M. (Lawyers Weekly No. 011-172-23, 6 pp.) (April C. Wood, J.) Appealed from Surry County District Court (William F. Southern, III, J.) Attorney General Joshua H. Stein, by Assistant Attorney General Melissa K. Walker, for the State; Appellant Defender Glenn Gerding, by Assistant Appellate Defender David S. Hallen, for the juvenile appellant.

See Page 18

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OPINIONS Continued From Page 17 North Carolina Court of Appeals

Domestic Relations Parent and Child — Termination of Parental Rights — Willful Abandonment — Parole Conditions The respondent-father’s parole conditions prohibited him from any contact with any child — including his own — unless he received advance permission.

Since father repeatedly sought such permission, to no avail, the trial court erred in determining that father had willfully abandoned his daughter.

We reverse and remand the trial court’s order terminating father’s parental rights.

The trial court accurately noted father’s efforts to modify his parole conditions, yet it concluded father had not tried reasonably — that is, frequently or earnestly — enough. To affirm such an order runs contrary to binding precedent and risks undue infringement upon a fundamental constitutional right.

In re C.J.B. (Lawyers Weekly No. 011-15923, 14 pp.) (Jeffery Carpenter, J.) Appealed from Guilford County District Court (Marcus Shields, J.) Garron Michael for respondent; Megal Spidell for petitioner.

North Carolina Court of Appeals

Landlord/Tenant Summary Ejectment — North Carolina Debt Collection Act — WellUse Fee Plaintiff landlord appealed from the trial court’s order dismissing its complaint in summary ejectment and granting a money judgment to defendant tenant.

We reverse the trial court’s order, as we agree with landlord that the trial court erred in concluding that landlord violated the North Carolina Debt Collection Act. In 2019, landlord rented a Raleigh, North Carolina, property to tenant. The property is a single-family home with a well that supplies water solely to the home. The parties executed a rental contract, or a

18

lease, under the terms of which landlord agreed to rent the property to tenant, who agreed to pay monthly rent of $1,175. Four days after executing the lease, the parties signed an amendment, modifying the “[t]otal rent” to a monthly amount of $1,350. The amended lease itemized the rent, detailing a “[b]ase rent” of $1,175, a “[w]ater utility” amount of $125, and a “[w]asher[-d]ryer” amount of $50. The water-utility amount refers to tenant’s use of the well.

The parties later excluded the $50 washer-dryer amount from tenant’s total rent because tenant did not use the washer or dryer. Therefore, after the amendment, tenant’s total rent was $1,300. Throughout tenant’s tenancy, a third party subsidized part of tenant’s base rent, and tenant paid the difference plus the “[w]ater utility” amount. In 2022, landlord gave tenant a written notice to vacate the property by March 11, 2022.

Tenant refused to leave the property, so on April 1, 2022, landlord filed a complaint for summary ejectment against tenant in Wake County Small Claims Court. The complaint listed the “rate of rent” as $1,350. The small-claims magistrate ordered tenant to vacate the property and tenant appealed to Wake County District Court.

After a bench trial, the trial court found landlord violated two provisions of the NCDCA. Specifically, the trial court found “landlord violated N.C. Gen. Stat. § 75-55(2) twenty-nine (29) times by attempting to collect and collecting a fee for the provision of water that [it was] not legally entitled to collect.” The trial court also found landlord violated N.C. Gen. Stat. § 75-54(4) by stating in its complaint that tenant’s “rate of rent” was $1,350, rather than $1,175.

On appeal, landlord argued the trial court erred in holding that it violated N.C. Gen. Stat. §§ 75-54, -55. We agree. Tenant was obliged to pay landlord $125 each month to use a well. Tenant’s obligation to pay accrued at the beginning of each month that tenant occupied the property.

Regardless of the timing of his payments, tenant was indebted to landlord because tenant was obliged to pay “in return for

something received,” well access.

Therefore, given the “common and ordinary meaning” of “debt,” tenant owed landlord a debt under the NCDCA. Because we established that the money collected was a debt, landlord is therefore a debt collector under the NCDCA. Tenant and landlord contracted for tenant to pay $125 per month for well access. Tenant paid, and landlord provided. No evidence suggests the property was unfit for tenant, and no evidence suggests that a separate well-use fee is prohibited by section 42-42. Therefore, landlord did not violate NC Gen. Stat. section 42-42 by charging Tenant a welluse fee.

Tenant also asserted that landlord’s well-use provision is unlawful under section 42-42.1 since landlord is required to charge for water based on a metered measurement. So according to tenant, the well-use provision is prohibited and therefore unfair under the NCDCA. We disagree. Landlord is a landlord, Tenant was landlord’s tenant, and the property is a single-family dwelling with a well as its water source. Landlord rented tenant access to the well, and that “service or commodity [was] not resold to or used by others.” Therefore, landlord falls squarely within the landlord-tenant exemption and is not regulated as a public utility under N.C. Gen. Statute Chapter 62. As a result, Landlord is not required to charge for water consumption based on a metered measurement.

We conclude landlord’s well-water provision does not violate sections 42-42 or 42-42.1. Therefore, the well-water provision does not violate public policy and is not unfair under the NCDCA. Reversed.

Onnipauper LLC v. Dunston (Lawyers Weekly No. 011-173-23, 16 pp.) (Jeffrey K. Carpenter, J.) Appealed from Wake County District Court (David Baker, J.) City of Oaks Law, by Hunter Blake Winstead & Jonathan W. Anderson, for Landlordappellant; Legal Aid of North Carolina, Inc., by BreAnna VanHook, Christopher Stella, Pamela Thombs, Celia Pistolis, & Isaac W. Sturgill, for Tenant-appellee.

North Carolina Court of Appeals ◆

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VERDICTS & SETTLEMENTS $75,000 SETTLEMENT

Plaintiff wrongly charged by deputy with firearm offense Action: Civil rights Injuries alleged: Emotional distress Case name: Samantha M. Fugate v. Hoke County, et al.

Amount: $75,000 Date: Sept. 25, 2023 Most helpful expert: Jimmy Henley Jr., law enforcement expert, Fayetteville Attorneys: Patrick R. Anstead of The Richardson Firm, Fayetteville (for the plaintiff) The Hoke County Sheriff’s Office agreed

to a pre-suit settlement of the plaintiff’s civil rights claims for wrongful arrest and unlawful detention after deputies charged her with felon in possession of a firearm on Oct. 3, 2022.

Despite having no criminal record, the plaintiff spent two days in the Hoke County Detention Center before she was able to post bond. The charges were later dismissed by the Hoke County District Attorney’s Office.

The plaintiff was arrested while in lawful possession of a firearm registered in her name because of deputies’ mistaken belief

that she had a felony conviction in Colorado. Deputies encountered the plaintiff while responding to a routine call and arrested her after she voluntarily produced her identification and disclosed the weapon inside her vehicle.

The Hoke County Sheriff’s Office agreed to resolve the claim without admission of liability. By doing so, the sheriff’s office never disclosed whether deputies ran a criminal background check on the plaintiff prior to swearing out a warrant to the magistrate or how they formed their belief that she had a felony conviction in another state. ◆

$1.8 MILLION SETTLEMENT

Defamation claim arises over unsuccessful operation Action: Defamation Injuries alleged: Damage to reputation Case name: Robinson v. Williams Case no.: 4:17-cv-112-FL Mediator: U.S. Magistrate Judge Robert Gates Amount: $1.8 million Date: July 7, 2023 Attorneys: Mary-Ann Leon of The Leon Law Firm, Greenville (for the plaintiff); Laura McHenry of the N.C. Department of Justice, Greenville (for the defendant)

Plaintiff maintained that defendant, an attending surgeon, damaged plaintiff's reputation as a cardiothoracic surgeon when he stated that a patient's aborted valve replacement was due to plaintiff's failure to interpret an intra-operative transesophageal echocardiogram (TEE). However, plaintiff recorded the post-operative conversation between her and defendant in which defendant admitted that the aborted operation was his fault for not having reviewed a pre-operative TEE. Defendant

was unaware of the audio recording until about two-thirds of his deposition testimony had been given. Nevertheless, the defendant's position was that plaintiff should have interpreted the intra-operative TEE as a backup.

Defendant's statement about the plaintiff was communicated to the National Practitioner's Data Bank through a medical malpractice payment report, which was seen by every prospective employer to whom plaintiff applied for attending surgeon positions. ◆

$4.75 MILLION SETTLEMENT

Head-on crash with truck gravely injures sports car driver Action: Personal injury Injuries alleged: Comminuted intra articular fracture of the femur, tibial plateau fracture, proximal fibular fracture, right patella fracture, sternal fracture, rib fractures, right pleural effusion, right manubrial fracture, L1 fracture, forehead puncture wound, right knee puncture wound.

Judge, court and case name: Withheld Amount: $4.75 million Date: June 14, 2023

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Most helpful experts: Steve Farlow of PE Accident Reconstructionist, Raleigh; Kevin Rider of Forensic Human Factor, Columbus, Ohio Attorneys: Robert Whitley and Ann C. Ochsner of Whitley Law Firm, Raleigh; James Scherr and Maxey Scherr of Scherr Legate, El Paso Plaintiff, who was driving a 1980s sports car, suffered numerous serious injuries after being hit head-on by a truck at 11 a.m. July 3, 2020. The collision happened on a clear,

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sunny day on a main thoroughfare in a business district where the speed limit was 45 mph. Plaintiff, who had preexisting medical conditions that required him to walk with the aid of a cane, has not completely recovered from injuries suffered in the collision and now must walk with the aid of a walker. Contributory negligence (driving in turn lane) was alleged by the defendants. The defendant was issued a citation for a moving violation; he pleaded responsible about a year later.◆

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VERDICTS & SETTLEMENTS CLAIM ALLEGED VIOLATIONS OF STATE RICO LAW

Court dismisses insurance company from lawsuit Action: Dismissal from lawsuit Injuries alleged: Conversion and violations of New Jersey RICO Act Case name: CEBV LLC v. Clear Blue Specialty Insurance Co., et. al.

Court/case no.: New Jersey Superior Court / GLO-L-00856-22 Date: Aug. 3, 2023 Attorneys: Mark A. Nebrig, Fielding Huseth, Kelsey Rector and Harley Payne of Moore & Van Allen, Charlotte (for the plaintiff) On Aug. 3, 2023, the New Jersey Superior Court granted Clear Blue Specialty Insurance Group’s (Clear Blue) motion to dismiss the plaintiff’s claim that Clear Blue aided and abetted conversion and violations of New Jersey Racketeer Influ-

enced and Corrupt Organizations (RICO) Act committed by independent insurance agents. On Dec. 16, 2022, the court granted Clear Blue’s initial motion to dismiss plaintiff’s breach-of-contract claim with prejudice. For that claim, the plaintiff had alleged that Clear Blue breached the premium finance loan contracts that the insurance agents had secured to obtain the loans.

Certain insurance policyholders with large premium charges seek loans to fund their premium charges, typically permitting the policyholders to make lower installment payments. Those policyholders typically use an insurance agent to secure the loans. According to the complaint, certain agents had used fake insurance policies purportedly issued by Clear Blue

and other insurers to fraudulently obtain the loans, then kept the loaned money.

The court’s dismissal of both claims demonstrates Clear Blue’s fundamental argument that a policyholder’s transaction with a premium finance lender is separate and distinct from the policyholder’s transaction with the insurance company.

The mere fact that the policyholder uses an independent insurance agent to secure the premium finance loan is not sufficient to allege that the insurance company is liable for the agents’ acts.

Although the plaintiff sought to connect Clear Blue to the case, the defense demonstrated that the independent agents were not acting on behalf of Clear Blue, which itself was an innocent victim in the matter. ◆

$600,000 SETTLEMENT

Plaintiff’s auto caught in middle of three-vehicle collision Action: Negligence and personal injury Injuries alleged: Back injury requiring surgery; injury was aggravated in physical therapy Court/case no.: Withheld Case name: Withheld Mediator: Scott Hart

Amount: $600,000 Attorneys: Devlin K. Horton of Horton & Mendez, Wilmington (for the plaintiff) The case involved a three-car rear-end collision with plaintiff's vehicle in the middle. There was little damage to plaintiff's vehicle, but there was significant damage

to the vehicle that hit him and the vehicle ahead.

There was a standard progression of treatment for a herniated disc that was aggravated in physical therapy after surgery.

There was a disputed lost income claim of $300,000. ◆

NEWS

SC law school seeks change to nonprofit status

C

harleston School of Law has made its case to shift from a privately owned for-profit institution to a nonprofit

one.

“The official step was on Oct. 13, when we took the first step with our accreditor, when we took the step of filing for acquiescence with the American Bar Association,” Larry

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N o r t h C a r o l i n a L a w y e r s W e e k ly s ta f f Cunningham, the school’s dean and one of its professors, said.

He and the staff submitted a detailed plan to the ABA, complete down to the legal documents that the school will need to file if the legal organization gives its approval.

If approved, ownership will be transferred to the Charleston School of Law Foundation Inc., a 501(c)(3)

nonprofit group. The foundation supports the study of law in the city, the mission of the law school, and its students through programs such as scholarships, its website says.

The application will be considered by the council of the ABA's Section of Legal Education and Admissions to the Bar. The council next meets Nov. 16-18.◆

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NEWS

Elon brings law school program to Charlotte N o r t h C a r o l i n a L a w y e r s W e e k ly s ta f f

E

lon University’s new law school in Charlotte will be a boon for professionals seeking the opportunity to enter the legal field.

Dubbed the “Elon Law Flex Program,” the school will offer students the chance to meld their jobs, families and other commitments with studies to earn a Juris Doctor degree in four years, Alan Woodlief, the law school’s senior associate dean, said in a telephone interview.

In the program’s livestreamed announcement ceremony, university President Connie Book touted it as a “dynamic, creative way to approach legal education” and a boost for the university.

“We know how powerful having a physical presence in Charlotte will be for the future of Elon,” she said.

The plan is for the inaugural class to have about 35 students, Zak Kramer, Elon Law’s dean, said at the announcement ceremony. The initial faculty will come from professors at the law school’s main campus in Greensboro, but the goal is to develop a faculty in Charlotte.

Interest is already building. The program has received about 300 inquiries from prospective students, with about 200 interested in starting when it opens in fall 2024, Woodlief said. Admission applications can be filed at www.elon.edu/u/law/elonlaw-part-time-program/.

The student body at the Greensboro campus offers several indications of the quality and type of students who will enroll in the flex program.

The law school projects that flex program students will primarily be working professionals who will be somewhat older than those at Greensboro, Woodlief said. The Charlotte student body is expected to be equally diverse; he said that

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Elon University School of Law will open a part-time Juris Doctor program at its Charlotte campus in fall 2024. (Elon University)

about two-thirds of Greensboro students are women, and about 25% to 30% are people of color.

The flex program will consider traditional admissions factors such as undergraduate GPA and Law School Admission Test score. For students in the Greensboro program, the median values are 3.4 and 153, respectively.

“I really do expect it to be a highly qualified group of applicants,” Woodlief said, with GPA and LSAT numbers “on par with those here in Greensboro.”

But there will be another consideration in Charlotte admissions.

“We will look at their professional experience and factor that in to a great degree,” he said.

Organizational issues Some program details are still being ironed out. They include accreditation, which the law school is seeking from the American Bar Association and The Southern Association of Colleges and Schools Commission on Colleges.

Financial details also remain to be seen. Elon Law works on a trimester basis, making cost comparisons to semester-based programs elsewhere

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imprecise. Students who spend the usual seven trimesters in the Greensboro program take 10 to 12 credit hours per trimester — 86 credit hours total — and pay about $125,000, based on 2023 tuition. The fee for the 2024 academic year has not been set yet.

The Charlotte program will differ.

“It will be [a] per-credit [system] tied to the current cost of the fulltime program,” Woodlief said, and students will take fewer credit hours per trimester.

Financial aid has not been finalized.

“We will have scholarships available, primarily merit-based scholarships,” he said.

Once the flex program earns accreditation, students can apply for financial aid grants and loans.

Kramer touted what Elon can offer the area’s residents through the flex program.

“The law school, as the university is, we’re in the dream-making business,” he said. “The opportunity to allow some folks to realize their dream of being an attorney when they haven’t had that option is really special.” ◆

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PROFILE Continued From Page 8

convicted.

But Lee sees his and his fellow district attorneys’ efforts as striking the right balance.

“I’m just going to say there are 42 elected district attorneys in this state,” he said.

“I know every one of them. You’re going to find a fair group of individuals. Ultimately, our job is to seek justice. ...

“We are committed to seeking reforms, but we have to make sure that the public is protected and that victims are protected.”

Phrases such as “victims are protected”

and “administration of justice” are not just lofty words to Lee, who still knows what it is to stand in front of a jury.

“I handle some pretty horrific cases, including first-degree murder,” he said.

“I’m going to do my best to ensure that the public is protected from these violent offenders.” ◆

LAWYER TO LAWYER / Directory COMMERCIAL & CONSTRUCTION LITIGATION John P. Marshall Tough Times Require Trusted Lawyers

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MANAGING PARTNERS TO WATCH

THE

powerLIST MANAGING PARTNERS TO WATCH  THE POWER LIST CATHERINE A. BARNES ........................................................23

LESLIE C. PACKER ...............................................................28

DAN CAHILL ........................................................................23

THE

REID L. PHILLIPS .................................................................28

E. BRADLEY EVANS .............................................................25

ALLEN K. ROBERTSON ........................................................28

powerLIST

TODD H. EVESON ................................................................25

MARY NASH K. RUSHER ......................................................28

JAMES R. FORREST ............................................................26

NICOLE SODOMA ................................................................29

BYRON B. KIRKLAND ...........................................................26

HEALTHCARE CHRISTOPHER C. LAM .........................................................26

MARSHALL WALL ................................................................29

PAUL C. LAWRENCE ............................................................26

MONA LISA WALLACE .........................................................29

JEFFREY P. MacHARG ..........................................................27

JUDSON A. WELBORN .........................................................30

STEVEN A. MECKLER ...........................................................27

DEVON D. WILLIAMS ...........................................................30

THE

CATHERINE A. BARNES

powerLIST MANAGING PARTNER JAMES McELROY & DIEHL CHARLOTTE, N.C.

Catherine Barnes has HEALTH distinguishedCARE herself by her devotion to consensus building among over 20 partners for most decisions. She consistently succeeds.

After selling the firm’s longtime office building, Barnes managed the process of moving its 40 employees to a smaller, more modern space in Charlotte. She also demonstrated her compassion and people skills during the retirement of the legendary Bill Diehl, a longtime partner known for his larger-than-life personality and love for practicing law.

Unique among larger firms, JMD splits its services between its large high-end family law practice and a smaller civil litigation and transactional practice. Over time, the business and transactional work has shifted into a type of boutique practice, and Barnes makes it all run like clockwork.

BUSINESS DEFENSE Known as a wise counselor, Barnes doesn’t often find herself in the limelight; rather, she is recognized as a sophisticated and detail-conscious transactional lawyer who has counseled complex generational transfers of privately held businesses and handled seven-figure commercial real estate transactions.

THE

DAN CAHILL

MANAGING PARTNER POYNER SPRUILL RALEIGH, N.C.

Recognized as a visionary with keen insights into what it takes to be successful, Dan Cahill guided Poyner Spruill through the COVID-19 crisis and maintained the firm's morale through his confidence and enthusiasm.

As managing partner, Cahill enabled the firm to thrive during the challenging pandemic by having the foresight to make Poyner Spruill cloud-based and prepared for office shutdowns.

In implementing the firm's five-year strategic plan, he focused on growth, diversity, exceptional client service and creating a culture that employees want to be part of.

Known for his ability to listen, build consensus and effectively use his communication skills, Cahill balances compassion for the people who work at Poyner Spruill with the realities of running a business. He demonstrates it every day as he walks the halls in all of the firm’s offices to greet employees. His door is always open, and he’s always receptive to hearing new ideas, new ways of doing things and how best to support everyone at the firm.

powerLIST THE

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We know two heads are better than one.

We’re not at all surprised that our Co-Managing Directors, Brad Evans and Devon Williams, have been recognized as among the Top Managing Partners by NC Lawyers Weekly. They both work incredibly hard to ensure that our culture of collaborative, client-centered teamwork defines our core value — that clients and colleagues come first. This drives how we operate and how we treat each other.

Our culture is special. We don’t do originations, we have a black-box compensation system, and we trust each other. For attorneys who enjoy being on a cohesive, hard-working, and winning team, and practicing in a truly client-centered environment, Ward and Smith just makes sense.

Brad and Devon answer their own phones. Feel free to give them a call if you’re interested in learning more about the Ward and Smith Way.

BradDevon Ad_Lawyers Weekly_7.75 x 10.25.indd 1

Brad Evans | 252.215.4025

Co-Managing Director, Litigation Attorney

Devon Williams | 919.277.9132

Co-Managing Director, Labor and Employment Attorney

11/2/23 7:20 AM

MANAGING PARTNERS TO WATCH

E. BRADLEY EVANS CO-MANAGING DIRECTOR WARD AND SMITH GREENVILLE, N.C.

Known for his ability to bring vision and clarity to his role as co-managing director at Ward and Smith, Brad Evans is skilled at taking grand ideas and making them a reality. He clearly articulates the firm's vision, bringing it to life by breaking it down into manageable steps, which he delegates to his staff to accomplish.

These efforts help him provide his team members with clear direction, ensuring that everyone is on the same page and working toward a common goal.

A leader in the legal profession, Evans was inducted into the American Board of Trial Advocates in 2023. He is a former president of the Eastern North Carolina Inn of Court and serves on the North Carolina Bar Association Board of Governors.

Under his leadership and that of co-managing director Devon Williams, the firm, now with 100 attorneys, is poised for sustained growth. Through their leadership, the firm created a staff internship program in 2020 to build a pipeline for staff positions and to enhance diversity

TODD H. EVESON

MANAGING PARTNER WYRICK ROBBINS YATES & PONTON RALEIGH, N.C. As Wyrick Robbins' managing partner, Todd Eveson most recently led the firm in achieving the Midsize Mansfield Rule Certification in May, which recognizes dedication to advancing diversity, equity and inclusion. He believes DEI initiatives are not only important for the legal profession, but essential in providing the highest quality service to a diverse client base.

Under Eveson’s leadership, Wyrick Robbins has also partnered with GreenPlaces to create a carbon offset plan that will lead toward a net zero impact on the environment.

He has nearly 25 years of experience focused on capital markets, mergers, acquisitions and bank regulatory matters. He has served as counsel in connection with more than 75 merger and acquisitions in the financial services sector, many successful initial public offerings and more than 20 successful de novo bank formations.

He is a member of the Special Committee for the five-year review of the Center for Banking and Finance at the University of North Carolina School of Law and serves on the center’s Board of Advisers.

Congratulations to our dedicated Managing Partner Paul C Lawrence

on his selection to the Top 20 Managing Partners in North Carolina List for being recognized as one of the Top 20 Managing Partners in North Carolina.

For his recognition as one of the Top 20 Managing Partners in North Carolina.

1925

on being named /selected as one of the TheMaking Top 20aManaging Partners in North Carolina. difference since To see how we can serve you, visit www.HedrickGardner.com.

Congratulations on being honored as one of the Top 20 Managing Partners in North Carolina!

Congratulations to our dedicated Managing Partner Paul Lawrence

on being selected as one of the Top 20 Managing Partners in North Carolina.

STEVEN A. MECKLER Charlotte and Greenville Managing Partner Management Committee Member

www.HedrickGardner.com

704.945.2187 smeckler@shumaker.com

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MANAGING PARTNERS TO WATCH

JAMES R. FORREST

NORTH CAROLINA MANAGING PARTNER MICHAEL BEST RALEIGH, N.C. In addition to his role as North Carolina managing partner at Michael Best, James Forrest practices corporate law and represents faith-based organizations, helping them in all areas of governance, management and regulatory matters.

In 2011, Forrest founded Forrest Firm, and over a decade, he grew the firm to seven offices with more than 50 team members and thousands of clients. In 2022, the Forrest Firm combined with Michael Best.

Outside his law practice, Forrest dedicates his time to community leadership and support in many organizations, including First Tee of the Triangle, the Duke DREAM Campaign, the Greater Durham Chamber of Commerce, Kidznotes, the Durham Symphony Orchestra, Durham CrimeStoppers, Leadership Triangle, Leadership Durham, Mission Triangle, Corporate Chaplains of America, Duke Hospital, the Association for Corporate Growth, N.C. Volunteer Lawyers for the Arts and the Raleigh Rescue Mission.

Over the years, he has received many honors and recognitions, including membership in the North Carolina Pro Bono Honor Society for the last three years.

CHRISTOPHER C. LAM

CHARLOTTE MANAGING PARTNER BRADLEY ARANT BOULT CUMMINGS CHARLOTTE, N.C. For Chris Lam, serving as a managing partner is about boosting his colleagues and keeping the lines of communication open. He’s known as the firm’s top cheerleader.

After joining Bradley Arant Boult Cummings in 2016, Lam quickly established himself as a leader. He built a successful practice and demonstrated his commitment to the legal profession as well as civic and philanthropic organizations.

He was named managing partner of the Charlotte office in 2018.

His approach to his role is paying off. Lam has been instrumental in the success of the Charlotte office, helping oversee a 33% increase in headcount.

He championed Bradley’s participation in the Mecklenburg County Bar’s Charlotte Legal Diversity Clerkship program and recently served a term as president of the Mecklenburg County Bar. A leader in legal advocacy and access to justice initiatives, Lam served as co-chair of the North Carolina Bar Foundation’s Administration of Justice Committee. In 2019, Gov. Roy Cooper appointed him to a three-year term on the N.C. Humanities Council Board of Trustees.

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BYRON B. KIRKLAND MANAGING PARTNER SMITH ANDERSON RALEIGH, N.C.

If a law firm’s success was measured only by its wealth, Byron Kirkland’s tenure as Smith Anderson’s managing partner would be a triumph. Just three years in, he has led the firm to a 35% revenue growth.

However, Kirkland has shown that success is measured in many ways, including work-life balance for employees. Success also is reflected in the firm’s five-year strategic plan that strengthens client service, boosts team cohesiveness, builds efficiencies and provides first-class professional development opportunities for attorneys.

Under Kirkland’s leadership, Smith Anderson has evolved into a diversity, equity and inclusion leader in North Carolina’s legal community, boosted by the rigorous 18-month Mansfield Certification program, designed to help boost inclusivity, access and diversity in leadership at law firms and legal departments.

Kirkland also is known for his ability to build meaningful relationships with others, particularly younger professionals, mentoring junior lawyers for nearly 30 years. Many have become partners at the firm, cementing Kirkland’s legacy for decades to come.

PAUL C. LAWRENCE

MANAGING PARTNER HEDRICK GARDNER KINCHELOE & GAROFALO CHARLOTTE, N.C. Paul Lawrence earned significant respect from his partners and Hedrick Gardner Kincheloe and Garofalo when he was elected as managing partner, not because of his management expertise, but for being willing to learn.

He read books on leadership, attended seminars and presentations on law firm management, and sought help from a leadership coach. He also sought advice from members of the firm’s administrative team who had leadership experience.

In 2020, during the COVID-19 shutdowns, his diligence and hard work paid off when he led Hedrick Gardner’s shift to a remote work environment in less than three days.

Lawrence also has overseen the merger with a small firm that added new practice areas and client service capabilities.

He also led an initiative to revise billing practices and overhaul rates, resulting in boosting net annual income by six figures.

Along with his responsibility as managing partner, Lawrence continues to try cases and has completed two employment law trials this year.

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MANAGING PARTNERS TO WATCH

JEFFREY P. MacHARG

STEVEN A. MECKLER

OFFICE MANAGING PARTNER FOX ROTHSCHILD CHARLOTTE, N.C.

Change has been a hallmark of Jeff MacHarg’s two-year tenure as Charlotte managing partner at Fox Rothschild. Last spring, he shepherded a merger with the Dempsey Law Group, which more than doubled the number of attorneys in the firm’s Charlotte office.

He also led a relocation effort, moving the office into the heart of Charlotte’s central business district and creatively using that space to keep the firm poised for future growth.

In addition to the time and effort he has put into growing the Charlotte office, MacHarg has maintained an active practice. This year, BTI Consulting Group named him to its list of Client Service All-Stars, citing his “ability to navigate complex legal issues” and for finding the “most efficient and cost-effective ways to achieve goals.”

MacHarg’s colleagues are inspired by the passion he brings to his roles. Never one for half-measures, he is fully engaged and has made a significant impact on office life and culture, inclusion, respect, client service and drive.

MANAGING PARTNER SHUMAKER LOOP & KENDRICK CHARLOTTE, N.C., AND GREENVILLE, S.C. Steve Meckler believes that successful and effective leaders will professionally and respectfully fight for what they believe in, showing opposing counsel they understand the laws, facts and rules without being brash or rude.

For these views, he has earned respect from his colleagues, clients and the bar.

As managing partner for the Charlotte, N.C., and Greenville, S.C. offices of Shumaker Loop & Kendrick, Meckler has overseen the firm’s growth and expansion.

He counsels large corporations, small businesses and individuals, never losing sight of his clients’ goals. Further, his personal mission is to help his clients achieve success as effectively and efficiently as possible.

Earlier this year, Meckler handled a case for the owners of a small business who held an option to purchase a piece of commercial real estate and were up against a large developer. The small business owners were unfamiliar with the legal process, but with Meckler’s guidance, they prevailed in their case, and that meant everything to them.

! s n o i t a l u t a r g n o C Marshall Wall

Top 20 Managing Partners in North Carolina RALEIGH CHARLOTTE WILMINGTON WWW.CSHLAW.COM

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MANAGING PARTNERS TO WATCH

LESLIE C. PACKER MANAGING PARTNER ELLIS & WINTERS RALEIGH, N.C.

As one of Ellis & Winters’ founding members, Leslie Packer has served as the firm’s managing partner for 10 years. For over three decades, she has helped clients navigate disputes over health care-product liability. She loves the variety associated with her practice, and she is always seeking new challenges.

Packer is detail-oriented and known for her serious, goal-driven approach to providing legal services.

She enjoys giving back to the legal profession through leadership and volunteerism in a variety of professional organizations. In 2009, she received the Andrew C. Hecker Award, honoring the best article published in the Federation of Defense & Corporate Counsel Quarterly Packer has been active in the Special Olympics since 1999, when she was instrumental in bringing the World Games to Raleigh, provided pro bono legal services, and served on the World Games board.

She also is an athlete herself, having competed in three marathons — the New York City Marathon, the Virginia Beach Marathon and the Chicago Marathon.

ALLEN K. ROBERTSON MANAGING PARTNER ROBINSON BRADSHAW CHARLOTTE, N.C.

Growth and transformation have been Allen Robertson’s vision for Robinson Bradshaw since he took the reins as managing partner in 2015.

He led the establishment of a new Raleigh office in 2020 and is spearheading the process of relocating the firm’s Charlotte headquarters from its current home of four decades to a new Uptown office tower. In addition, the firm has increased its headcount by 48 lawyers over the past eight years.

Demonstrating his commitment to diversity, equity and inclusion, Robertson established a firmwide Racial Justice Task Force to address racial disparities and social injustices on a broader scale. The task force has expanded into the Carolinas Social Impact Initiative and its first program, the Charlotte Legal Initiative to Mobilize Businesses (CLIMB), which provides pro bono legal services to low-income entrepreneurs and small businesses in the Charlotte area.

Known for his deep respect for the firm’s history and his strong vision for its future, Robertson considers the firm culture and its core ideals of excellence, professionalism and teamwork in every decision he makes as managing partner.

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REID L. PHILLIPS MANAGING PARTNER BROOKS PIERCE GREENSBORO, N.C.

Across his seven-year tenure as managing partner at Brooks Pierce, Reid Phillips has led the 125-year-old law firm with vision and a steady hand.

These attributes were important when the firm faced the COVID-19 crisis, but through it all, Phillips not only provided top-level leadership, but he also stayed focused on the future and created an environment of inclusivity and equity for colleagues. In addition to elevating the firm’s Diversity and Inclusion Committee’s role, he appointed its first full-time director of diversity and inclusion, a partner-level position.

Phillips is known for his ability to lead by example and is recognized as a tireless coach and enthusiastic cheerleader who loves seeing others thrive and fully realize their potential. His imprint is everywhere at Brooks Pierce, but his hand is unseen.

Colleagues recognize Phillips as an authentic leader who skillfully leverages intellect, hard work and a clear sense of right and wrong to create solutions that drive favorable outcomes and help people and organizations thrive.

MARY NASH K. RUSHER RALEIGH MANAGING PARTNER McGUIREWOODS RALEIGH, N.C.

In addition to her role as managing partner of McGuireWoods’ Raleigh office, Mary Nash Rusher works closely with local governments, nonprofit agencies, and other organizations to finance capital improvements using tax advantage financing — primarily tax-exempt bonds.

She has played a role in nearly every affordable housing bond issue in North Carolina over the past decade that involved tax-exempt bonds and 4% tax credits, and she regularly works with local governments to find innovative ways to provide affordable housing in the state. She says she feels gratified when she can help fund the infrastructure that communities need.

In a 2019 interview with North Carolina Lawyers Weekly, Rusher said she balances work and personal commitments by limiting her involvement to activities she is especially passionate about. She treats nonwork obligations with the same importance as work events.

One of those activities is the YMCA of the Triangle, where she has served on the board of directors, including as its chair, for over a decade.

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MANAGING PARTNERS TO WATCH

NICOLE SODOMA

MARSHALL WALL

MANAGING PRINCIPAL SODOMA LAW CHARLOTTE, N.C.

Throughout Nicole Sodoma’s 25-year career, she has built a reputation for her commitment to clients, entrepreneurship, vision and community involvement.

She is a family law attorney who started Sodoma Law in 2008, focusing on top client service.

In Sodoma Law’s first 12 months, the firm’s revenue increased by over 20%, expanded to a dozen employees and kept growing.

Today, the firm employs 28 attorneys in five offices across North Carolina and South Carolina.

Philanthropy has always been an important aspect of Sodoma’s life, and in 2014, she extended the firm’s charitable giving arm by establishing the Sodoma Law Foundation. The foundation supports organizations that improve children’s lives and well-being as well as the charitable endeavors of the region’s legal community by aggregating the firm’s pro bono work and contributed funds into areas where they can make the maximum impact.

In 2022, Sodoma added “author” to her list of accomplishments when she published her first book, “Please Don’t Say You’re Sorry.”

MANAGING PARTNER CRANFILL SUMNER RALEIGH, N.C.

From the day Marshall Wall joined Cranfill Sumner as a clerk in 1998 to his election as managing partner in 2016, he has championed growth. Now, he oversees offices in Raleigh, Charlotte and Wilmington, 73 attorneys and more than 100 staff members.

He also maintains a full-time practice and chairs the firm’s cyber liability and privacy law practice group, which was born out of his keen interest in cyber liability and internet privacy.

He frequently writes and speaks on this topic at state and national levels.

Under Wall’s leadership, the firm’s client services have expanded to six new practice areas. He also has enhanced employee benefits, including expanding online education and training programs and launching a career development program for all staff members at the firm.

Marshall is known as a natural leader who leads by example and shows others the way. As an attorney, he is a respected, trusted professional who always seeks out new growth opportunities.

MONA LISA WALLACE MANAGING PARTNER WALLACE & GRAHAM SALISBURY, N.C.

Born and reared in the small North Carolina communities of Salisbury and Spencer, Mona Lisa Wallace showed early leadership skills and excelled in high school and college, graduating from Wake Forest University School of Law in 1979.

With a law degree in hand and her eye on litigation, she returned to Salisbury to practice law but struggled to get a job as a female trial lawyer. So, she started her career by focusing on family law and representing victims of domestic abuse. She quickly became a sought-after attorney and began representing victims of asbestos poisoning.

Her reputation grew, and she grew the firm into other practice areas, represented clients in personal injury cases and earned a strong track record of success.

Wallace is a long-time supporter of Public Justice, a national nonprofit legal advocacy organization that aims to protect consumers, employees, civil rights and the environment. She also was a founding member of the American Museum of Tort Law, located in Winsted, Connecticut.

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NOVEMBER 2023

Congratulations to Chris Lam for being named to the Top 20 Managing Partners in North Carolina Our attorneys understand that legal matters are more than contests of critical thought – they have real-world implications. At Bradley, we’re focused on providing innovative solutions, dependable responsiveness and a deep commitment to success.

Please visit our website www.bradley.com No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. ATTORNEY ADVERTISING. Contact: Christopher C. Lam, Esq., 704.338.6059, clam@bradley.com, Bradley Arant Boult Cummings LLP, Truist Center, 214 North Tryon Street, Suite 3700, Charlotte, NC 28202. ©2023

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MANAGING PARTNERS TO WATCH

JUDSON A. WELBORN

DEVON D. WILLIAMS

MANAGING PARTNER MANNING FULTON & SKINNER RALEIGH, NC

CO-MANAGING DIRECTOR WARD AND SMITH RALEIGH, N.C.

Devon Williams is celebrated at Ward and Smith for her ability to break down barriers and bring multiple generations together in the workplace. She understands that businesses need to adapt to the needs of their employees and is committed to creating a work environment where everyone feels valued and respected, regardless of their age or generation.

She helps deconstruct silos by encouraging multigenerational employees to work together on projects and teams, creating a more cohesive work environment.

Alongside the firm’s co-managing director, Brad Evans, Williams created a successful staff internship program in 2020 to build a pipeline for staff positions and to enhance diversity.

In her employment law practice, Williams counsels human resources executives and C-suite officers, navigating them through state and federal requirements for employers to help them avoid costly litigation and improve workplace relations. As a member of the firm's Hemp Law practice group, she helps clients in the agribusiness, hemp and CBD industries navigate the complexities of labor and employment laws impacting their business.

A Durham native and lifelong resident of the Triangle, Welborn is managing partner at Manning, Fulton & Skinner, where he has spent more than two decades practicing complex business litigation and transactional matters.

Demonstrating tireless commitment to his clients, Welborn credits his mentors, the late Howard Manning and John McMillan, for his reputation as one of the more trusted and respected litigators in North Carolina.

He firmly believes attorneys are obligated to give back to the communities where they work and live, and he’s an active leader in professional and civic organizations.

Welborn serves on the North Carolina Bar Association’s Litigation Section Council and the Wake County Bar Association/10th Judicial District Bench-Bar Committee.

He also is the former chair of the Board of Trustees of Follow the Child Montessori School and a former member of the North Carolina Rules Review Commission and the Carolina Ballet Board of Directors.

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AUGUST 25, 2021

Jury awards $3.41M to woman sexually abused by father ■ BY HEATH HAMACHER A Wake County jury has awarded $3.41 million to a 23-year-old woman for sexual abuse she endured for nearly a decade.

Ian Richardson of Vann Attorneys and Daniel Barker of Barker Richardson, both in Raleigh, report that their client, Moriah Taylor, was repeatedly Barker sexually abused by her father, David Taylor, from the time she was 8 years old until she reported the abuse to her bishop when she was 17. Her mother, Toby Taylor, knew about the abuse and did nothing to stop it, Richardson said.

Ordinarily, Lawyers Weekly does not divulge the names of victims of Richardson sexual abuse. But Richardson said that his client “wanted to shine a bright light on what happened, as she felt like when she was a child this was improperly swept under the rug by numerous people, including her mother.”

“I think, at least for our client, there was something powerful about facing this situation head-on,” Richardson said.

Court records show that David Taylor was convicted of attempted sexual battery in 2015, and Richardson said that David admitted to sexually abusing Moriah approximately five times, though Moriah claims she was abused “more times than she can count.”

The suit alleged negligence and negligent infliction of emotional distress by Toby Taylor. Richardson said that Toby admitted to knowing that when Moriah and some of her sisters (David and Toby have 11 children together, Richardson said) were younger, David would call them into his home office “to inspect their breasts.”

“Toby told [Child Protective Services] that she knew something was going on, but couldn’t put her finger on it,” Richardson said.

Richardson said that David served just a few days in jail after pleading guilty to the offenses, time meted out

only after he violated probation by contacting Moriah.

“Therefore, we asked a civil jury to hold both he and Toby Taylor accountable for what happened and impose a punishment consistent with the nature of the abuse,” Richardson said.

David and Toby represented themselves at trial. After a three-day trial, the jury deliberated about four hours, Richardson said, before finding them liable on Aug. 19 and awarding Moriah $1,185,800 in actual damages and $2,225,000 in punitive damages.

Nevertheless, Richardson said he considers it only “halftime” in the case, since David and Toby claim that they are too poor to pay the judgment.

“But we have evidence that they own cryptocurrency and substantial precious metals,” Richardson said. “So now we’re going to go focus on collecting.”

Follow Heath Hamacher on Twitter @NCLWHamacher

2021

RISING STARS AMANDA M. CUBIT

VERDICT REPORT — SEXUAL ABUSE Amount: $3,410,800

Sodoma Law Union

Injuries alleged: Emotional distress and post-traumatic stress disorder

Monroe

Case name: Moriah Taylor v. David and Toby Taylor Court: Wake County Superior Court Case No.: 18-CVS-12294 Judge: Graham Shirley Date of verdict: Aug. 19 Demand: $1 million

O

f all Amanda M. Cubit’s accomplishments so far in her career, serving on the board of Turning Point, Inc. has been her most important and rewarding.

Turning Point, in Union County, serves survivors of domestic violence, sexual assault and child abuse. “The mission of this organization is close to my heart as I frequently represent people who have been affected by domestic violence,” she says.

Cubit, a family lawyer with Sonoma Law Union in Monroe, received her law degree from Charlotte School of Law in 2012 after graduating from Clemson University with a Bachelor of Arts degree in political science. She started her career practicing with Legal Aid of North Carolina.

She has happy memories of growing up near Philadelphia, where she enjoyed celebrating birthdays, holidays and important milestones with her parents, two younger siblings and extended family.

“Family has always been the most important part of my life, and I would not be who I am today without their love and support,” she says.

If Cubit could have dinner with anyone of her choosing, it would be her grandfather. She had a close relationship with him, but he passed away when she was young. “There are many questions I would love to ask him, and stories I would love to hear now that I am older,” she says.

During the COVID-19 lockdown, Cubit became enthralled with the show “Below Deck” on the Bravo channel. She is still hooked and rarely misses an episode.

“My brother is captain of a yacht, and the show gives me a look into how he spends his days,” she says. “It goes without saying that we lead very different lives.”

Highest offer: $25,000 Attorneys for plaintiff: Daniel Barker of Barker Richardson and Ian Richardson of Vann Attorneys, both in Raleigh Attorneys for defendants: None

Reprinted with permission of North Carolina Lawyers Weekly

© 2021

Reprinted with permission of North Carolina Lawyers Weekly

© 2021

Enveritas is the exclusive reprints and logo licensing partner for North Carolina Lawyers Weekly

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COMMENTARY

Are workplace DEI policies still legal after SCOTUS decisions?

By Cara Crotty and Robin Shea

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his summer, the U.S. Supreme Court ruled that the use of race in college admissions violated the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 (Students for Fair Admissions Inc. v.

President & Fellows of Harvard and Students for Fair Admissions Inc. v.

University of North Carolina, 143 S. Ct. 2141 (2023)). Although the decisions were limited to college admissions practices, they could have implications for employers and their diversity, equity and inclusion efforts.

At first blush, the decisions — though momentous for institutions of higher education — seemed lackluster for employers. After all, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981 already expressly prohibit discrimination in employment based CROTTY on race — any race.

In addition, Executive Order 11246, which requires federal contractors to take “affirmative action” toward women and minorities, specifically prohibits the use of race — any race — in SHEA making employment decisions (41 C.F.R. § 60-2.16(e)(2)).

Affirmative action for federal contractors means recruiting candidates from diverse sources and the application of neutral and nondiscriminatory selection criteria to the applicant pool. The theory is that the creation of diverse candidate pools will gradually result in more diverse workforces.

However, contractors are not required, or even allowed, to favor female or minority applicants. The U.S. Equal Employment Opportunity Commission also takes the position that “[t]he process of screening or culling recruits presents another opportu-

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nity for discrimination. Race obviously cannot be used as a screening criterion” (EEOC’s Compliance Manual on Race Discrimination, Section VI(A)(4) (2006)).

Thus, the affirmative action required of employers who are federal contractors is entirely different from the practices at issue in the SFFA cases.

The Supreme Court’s decision posed nothing new or different in the employment context. However, since the decision was issued, some employers have been sued or threatened with lawsuits over their DEI practices. If the law didn’t change, what did?

legal challenges to their DEI practices.

America First Legal has urged the EEOC to investigate The Hershey Co., Mars, Anheuser-Busch and Starbucks for their DEI policies. Companies facing lawsuits relating to their DEI practices include American Express, Activision, Meta, Gannett and Morgan Stanley.

Law firms are not immune from these challenges. The American Alliance for Equal Rights sued Perkins Coie and Morrison Foerster for allegedly providing fellowship opportunities on the basis of race.

Reactions to decisions

Many of the legal challenges noted above revolve around the alleged explicit use of race in making employment decisions. Title VII prohibits the use of race “with respect to ... compensation, terms, conditions, or privileges of employment,” as well as classifying employees or applicants in a manner that could adversely affect them because of a protected characteristic (42 U.S.C. § 2000e-2(a)).

In light of that, here are some DEI practices that employers should be cautious of implementing: • Setting aside a certain number of jobs for women or minorities: Set-asides could be interpreted as quotas, which are prohibited.

• Establishing unattainable or unreasonable goals for women or minorities: Placement goals to increase representation of any demographic are not necessarily unlawful. In fact, federal contractors are required to set placement goals where the representation of women and minorities is less than one would reasonably expect based on their availability (41 C.F.R. § 60-2.15(b)). However, goals that are not objectively reasonable based on anticipated openings and attrition can pose legal risk.

• Tying compensation or bonuses to attainment of diversity goals: Although not

Within two weeks of the SFFA decisions, 13 state attorneys general, including Alan Wilson of South Carolina, wrote to Fortune 100 companies, contending that race discrimination was common in their organizations and warning that race discrimination in furtherance of DEI policies would be prosecuted.

U.S. Sen. Tom Cotton, R-Ark., sent a letter to 51 of the nation’s larger law firms stating that DEI hiring policies were unlawful. He also warned, “[t]o the extent that your firm continues to advise clients regarding DEI programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.”

Five of the 13 state attorneys general who sent the initial letter delivered a similar letter to the managing partners of the Am Law 100 firms.

To make matters more confusing, attorneys general from 20 states and the District of Columbia engaged in their own letter-writing campaign, urging the Fortune 100 companies to ignore the threats from the other states and advising them to double down on their DEI initiatives.

North Carolina Attorney General Josh Stein did not join the campaigns of either group of attorneys general.

Meanwhile, employers began facing

NOVEMBER 2023

Questionable DEI practices

See Page 34

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COMMENTARY

Stericycle decision forces evaluation of policies, practices

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he National Labor Relations Board, the federal agency charged with protecting employee rights under the National Labor Relations Act, recently issued a decision that has employers in the Carolinas and across the country taking a closer look at their workplace policies and practices.

In a case involving Stericycle Inc., a national medical waste compliance company with operations in North Carolina and South Carolina, the NLRB toughened standards for evaluating whether an employer’s poliTHALLERcies would discourMORAN age or “chill” an employee’s ability to engage in activity protected by Section 7 of the labor act.

The Stericycle decision changes course from prior standards that allowed an employBARKER er’s business interests to balance out potential restrictions on employees’ ability to engage in Section 7-protected activity.

After Stericycle, all workplace rules and policies are judged through the lens of employees who might err on the side of caution in interpreting restricted behavior because of their economic dependence on their employer and might thus be discouraged from advocating for better working conditions, disagreeing with management, or discussing wages and benefits with their co-workers. To that end, all workplace policies should be narrowly tailored to specific business interests and avoid unnecessarily

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B y J e s s i T h a l l e r -M o r a n a n d E r i n B a r k e r

[I]f the NLRB general counsel proves that a rule or policy has a “reasonable tendency” to restrict an employee from expressing concerns about wages or working conditions, the rule or policy is presumptively unlawful, even if the employer did not intend to restrict employees’ Section 7 rights. discouraging employees from engaging in protected activity.

Unlike prior NLRB authority, there are no categories or types of policies that are presumptively allowed. Instead, if the NLRB general counsel proves that a rule or policy has a “reasonable tendency” to restrict an employee from expressing concerns about wages or working conditions, the rule or policy is presumptively unlawful, even if the employer did not intend to restrict employees’ Section 7 rights. The employer might only salvage the policy and avoid liability if the employer can show that it was narrowly tailored to protect a legitimate and substantial business interest.

The Stericycle decision affects a wide range of workplace policies and practices, and North Carolina and South Carolina employers should review handbooks and workplace policies to make sure that they meet current legal standards. Employers should specifically work with counsel to revisit policies that touch on employees’ communications and interactions with one another, such as: • Policies restricting the use of social media, email and other communication

resources.

• Workplace monitoring policies and practices, which can include the use of security cameras.

• Codes of conduct.

• Workplace confidentiality requirements.

• Nondisparagement and other policies restricting criticism or negative comments toward the company or its management.

• Workplace “no soliciting” policies that might discourage employees from discussing or distributing union-related materials.

The landmark Stericycle ruling highlights a renewed emphasis by the NLRB on safeguarding employees’ rights under the labor act. With this shift, employers in the Carolinas and around the country should evaluate and refine their policies to remain legally compliant.

Jessi Thaller-Moran is a partner at Brooks Pierce, where she counsels employers on legal compliance in the workplace.

Erin Barker is an associate at Brooks Pierce; she advises clients on various employment, ERISA and benefits-related matters.

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COMMENTARY

Name game can end up being blame game B y M a r k M c G r at h

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hat’s in a name? When Juliet queried whether a rose would smell as sweet if called by another name, she captured the notion that names are artificial and arbitrary constructs bearing little if any relevance to the essence of the thing so named.

If things were only as logical in North Carolina jurisprudence, a realm where names are paramount, and the law is pitiless and unforgiving. The decisions of the North Carolina courts are clear: when filing suit against a party, get the name of the defendant right or face potential dismissal of your claim.

The scenario is a surprisingly common one. A plaintiff sues ABC Inc. safely within the statute of limitations. The litigation proceeds and on the date the statute of limitations expires, the defendant files a motion to dismiss, claiming that the proper party defendant is ABC LLC, not ABC Inc. McGRATH Plaintiff then files a motion to amend the complaint to name the proper defendant.

No problem, right? After all, the two entities share a common registered agent, corporate address and legal department, and ABC LLC cannot seriously argue that it was not on notice of the lawsuit. In this scenario, what should be the result? The answer might surprise you.

The resolution of this issue hinges upon proper application of Rule 15 and, in particular, whether the addition of the proper defendant after the running of the statute of limitations would relate back to the date of original filing. Rule 15(c) provides that “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice

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of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.”

North Carolina courts have strictly interpreted this language, holding that while amendments to add claims may relate back to the original filing date, amendments to add parties do not. This nuance is illustrated by the case Franklin v.

Winn Dixie Raleigh Inc. In Franklin, plaintiff named Winn Dixie Stores Inc. in his original summons and complaint. The statute of limitations ran during the pendency of the litigation. After the statute of limitations passed, the defendant moved to dismiss, arguing that the proper defendant was Winn Dixie Raleigh Inc. not Winn Dixie Stores Inc., and that, therefore, the action should be dismissed.

Despite a vigorous dissent by Justice James A. Wynn Jr., the North Carolina Court of Appeals held that: “[W]e hold that the named defendant in the original summons and complaint, ‘Winn Dixie Stores, Inc.’, was not a mistake or misdescription permitting the amendment of the summons. Rather, Winn Dixie Stores, Inc. was the correct name of the wrong corporate party defendant, a substantive mistake that is fatal to this action. Quite simply, plaintiffs sued the wrong corporation.”

The court of appeals ruled that, because the two Winn Dixie parties were distinct corporate entities, any amendment to name the proper defendant would not relate back to the date of original filing because the amendment sought to add a new party, not a new claim.

The North Carolina Supreme Court subsequently adopted this reasoning in Crossman v. Moore. In disallowing an effort by the plaintiff to correct the name of the proper defendant in an amended summons and complaint, the court held that: “[N]owhere in [Rule 15] is there a mention of parties. It speaks of claims and allows the relation back of claims if the original claim gives notice of the transactions or

NOVEMBER 2023

occurrences to be proved pursuant to the amended pleading. When the amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur. As a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed. We hold that this rule does not apply to the naming of a new partydefendant to the action. It is not authority for the relation back of a claim against a new party.”

It is now well-settled law that Rule 15(c) allows only amendments to add new claims and not new parties (see Williams v. Advance Auto Parts Inc.).

To avoid this trap for the unwary, counsel for plaintiffs should be aware of this rule and make every effort to identify the correct corporate defendant before filing suit. The following tips are helpful: • Serve written discovery before the running of the statute of limitations to ascertain the proper party defendant. For example, in a premises liability case, serve discovery requesting the names of all entities involved with the ownership, maintenance, operation and use of the property at issue. If it is discovered that the proper defendant is other than the defendant named, move to amend the pleading to add the correct partydefendant before the running of the statute of limitations.

• Cast a wide net when identifying potential defendants. Being mindful of Rule 11, include like-sounding entities as defendants if the available evidence is inconclusive as to the proper defendant and the statute of limitations is approaching.

• Utilize online tools to identify and verify potential defendants, such as secretary of state websites, the Electronic Data See Page 34

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COMMENTARY Continued From Page 33

Gathering, Analysis, and Retrieval (EDGAR) database maintained by the Securities and Exchange Commission, online register of deeds’ databases, and the Occupational Safety and Health Administration establishment search database.

• After filing suit, pay close attention to responsive pleadings. Using our premises liability example, if the answer denies that the named defendant was involved with the ownership, use, possession or maintenance of the property at issue, you might have named the wrong party. Follow up immediately with discovery to identify the proper party defendant.

• Be mindful of the fact that the relation back rules are different in federal court.

Rule 15 of the Federal Rules of Civil Procedure allows the addition of new parties after the running of the statute of

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per se unlawful, such incentives could provide powerful supporting evidence of discriminatory decision-making.

• Requiring diverse candidate slates: Potentially, an employer can organically create diverse candidate slates from diverse applicant pools. However, if individuals are moved forward in the selection process because of their race or gender and the need to satisfy a “diverse slate” requirement, this could violate nondiscrimination principles.

• Limiting opportunities based on race or gender: To offset past historical disadvantages, some employers might desire to offer extra or special opportunities, such as training, mentorship and leadership programs, to individuals from underrepresented groups. If those opportunities are limited to racial minorities or women, these programs could draw challenges.

This is not to say that initiatives like the above cannot be designed in a way that passes legal muster. However, employers should be mindful that these are categories of practices that have already been — or are most likely to be — challenged as violative of Title VII or other state or federal

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limitations when the plaintiff’s claim arises out of the same events and circumstances giving rise to the claim, the proper party receives notice of the pending action from the initial complaint, and the new party is aware or should have been aware that the failure to name it as an original defendant was the result of a mistake on the plaintiff’s part.

• Courts will permit the addition of a party if the misidentification was merely a misnomer. Our courts have rarely found that a misidentification constitutes a misnomer. While the case law is somewhat vague, the cases clearly hold that when the party to be added is a different person or a distinct corporate entity the misnomer exception will not apply.

Misnaming the proper party-defendant can spell disaster for unwary plaintiffs and provide a gift to defendants engaging

in a game of gotcha litigation. The North Carolina rules for the addition of new parties are draconian and ripe for legal malpractice claims. Before filing suit, plaintiffs should conduct a thorough investigation and avail themselves of the many online sources of information that are available to them. Whenever possible, plaintiffs should allow a reasonable cushion between the filing date and the running of the statute of limitations to permit discovery aimed at identifying the proper defendant. Remember, naming the proper defendant can spell the difference between success and failure in the North Carolina courts.

So, what’s in a name? It just might mean everything.

Mark McGrath is a lawyer with Paynter Law in Hillsborough, where he practices personal injury and medical malpractice litigation. ◆

laws. Employers should consult employment counsel when considering any programs of this nature.

interviewers where feasible and appropriate.

• Training managers on policies relating to nondiscrimination, DEI and unconscious bias.

• Monitoring internal and external communications for consistency of messaging around DEI. DEI is not a synonym for discrimination.

Although some employers might have pushed the envelope, the vast majority strive to do both what is right and lawful.

Sometimes, the law is counterintuitive, and DEI could be one of those areas. Therefore, employers should involve experienced employment counsel in developing DEI programs and reviewing existing practices to ensure compliance with nondiscrimination laws.

Cara Crotty is a partner in the Columbia, South Carolina, office of Constangy, Brooks, Smith & Prophete. She chairs the firm’s affirmative action and Office of Federal Contractor Compliance Programs practice group.

Robin Shea is a partner in the WinstonSalem, North Carolina, office of Constangy, Brooks. She has more than 30 years of experience counseling employers and representing them in Title VII employment litigation.

DEI best practices The following practices are recommended to foster lawful DEI and ensure compliance: • Setting placement goals for women or minorities that are based on objective factors, are reasonably achievable, contemplate gradual and incremental progress, and measure achievement by percentage of placements as opposed to specific numerical targets.

• Analyzing selection processes to determine whether any practice has an adverse impact based on race or gender. This includes an adverse impact on white and male candidates or employees.

• Reviewing DEI policies periodically to ensure they are lawful in substance and practice.

• Using a wide variety of recruitment sources, including those that focus on diverse groups and ensuring that candidate pools are reasonably diverse before applying neutral, nondiscriminatory selection criteria.

• Including women and minorities as

NOVEMBER 2023

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A Publication of North Carolina Lawyers Weekly and South Carolina Lawyers Weekly

NOVEMBER 2023

DESPITE PROBLEMS, ECOURTS MOVES AHEAD Paralegals cooperate to navigate challenges, adapt to new platform n BY TERI SAYLOR

D

espite a steep learning curve, technical problems and a class action lawsuit, North Carolina’s new eCourts judicial records system is moving forward, with five counties on board and others expected to come online next year.

The system was delivered with fanfare Feb. 13, but paralegals reported it did not measure up to their expectations and was almost impossible to manage. Today, eight months after the pilot program launched in Wake, Harnett, Johnston and Lee counties, SIMONTACCHI users are still frustrated but finding ways to cope.

Slated to deploy in summer in Mecklenburg County, problems and glitches pushed it back to Oct. 9. Next on the list to roll out are 11 counties in northeastern North WHITE Carolina. The entire state is expected to be online by 2025, but Sarah White, a Raleigh-based litigation paralegal at Ragsdale Liggett, is skeptical.

“I think we’ll see more delays, and I feel it’s probably going to be a couple of years before we get the entire state on the platform,” she said.

After years of discussions about modernizing the state’s outdated court filing system, the North Carolina Administrative Office of the Courts awarded Texas software company Tyler Technologies a $100 million contract in

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2019 for eCourts.

The comprehensive suite of software applications offers a system for all types of court processes, including eFiling, eDiscovery, financial management, and a public access portal where people can pay fines and court costs and access records. This system also is online in 38 other states.

Early problems, ranging from the inability to upload documents to failure to locate them in the system, have plagued users, and there was tremendous difficulty finding cases.

“If you were searching by party name, you had to enter it exactly as the clerk had entered it in the system,” White said. “So, if there was a stray comma or a misspelled name, you could not find it in the search engine, and that is a big deal.”

Tyler Technologies has added a “wild card” function allowing searches with a partial document title.

Wrongful arrests In some cases, system glitches in the eWarrants app have had devastating impacts, causing people to be wrongfully arrested on nonexistent outstanding warrants despite having their cases dismissed or otherwise resolved.

Now, Tyler Technologies, Wake County Sheriff Willie Rowe and Lee County Sheriff Brian Estes are defendants in a class action lawsuit brought by plaintiffs who were unlawfully detained. According to the complaint, similar problems have cropped up in Texas, California, Tennessee and Indiana, and the defendants should have known that problems with eWarrants could lead to mistaken arrests if it was not implemented with due care.

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“We’re seeing lawsuits all over the country against Tyler Technologies because of system glitches caused defendants to not receive hearing notices or failure to record resolution of their cases, so they’ve had warrants issued against them,” White said. “Now we’re hearing that rather than use the eCourts portal system, criminal defense attorneys are sending their clients to the courthouse to pay their fines in person and to take their case numbers with them to ensure they are recorded correctly.”

When eCourts launched in the first four North Carolina counties, the AOC acknowledged the likelihood of problems but assured the legal community that improvements were in the works.

This system is still a work in progress, but getting better each day, AOC spokesman Graham Wilson said in a written statement.

“Both attorneys and courthouse staff are gaining comfort and familiarity with the system,” he wrote. “That said, any new system has a learning curve and requires configuration refinements during the pilot phase, and that is the case with this project.”

Exercise in patience System architects and proponents tout eCourts for expanding access to justice by streamlining processes like filing documents electronically; paying filing fees, fines and court costs; and receiving emailed status updates. The system is web-based, giving people without access to home computers the ability to conduct their court business using their smartphone. In addition, courthouses offer computer terminals for public use.

“Just the convenience factor of being able See Page 36

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CAROLINA PARALEGAL NEWS

NOVEMBER 2023

STEPHANIE SALINAS: FINDING HER NICHE AS A PARALEGAL n BY TERI SAYLOR s a young woman growing up in Stokesdale, North Carolina, Stephanie Salinas enjoyed helping people in need and serving as a voice for the underprivileged community.

“I knew I wanted to work with people, either as a social worker or a police officer,” she said. “A paralegal fits between those two career choices, and I get to serve our community across the state and throughout the country.”

Salinas is the senior paralegal for the dangerous drugs and products practice, including the Camp Lejeune toxic water litigation, at Ward Black Law in Greensboro.

Q. Tell a little bit about yourself.

A. I was born in Texas and moved to North Carolina in the late ’80s with SALINAS my family. I attended Guilford Technical Community College and received my associate degree in paralegal technology in 2009 and my

A

Bachelor of Science degree in criminal justice with a community and justice studies minor from Guilford College in 2014.

I started my legal career as an intern for a law firm in Greensboro, handling traffic and criminal cases during summer 2008. I went full time after I graduated from Guilford Tech in 2009. I continued to work full time as a paralegal, and with the experience and skills I had gained over time, I was able to handle cases in a variety of areas over the years, including personal injury, Social Security disability, estates administration, immigration and workers’ compensation.

Q. What are your top career challenges and what are your greatest rewards?

A. As paralegals, we are the go-to, solveit-with-grace people in the office. It’s challenging when we decline cases, as our hearts are set on serving everyone.

Giving bad news to a potential client comes with a heaviness. But we do it with grace and compassion knowing that we did our part by listening and providing resources to someone who otherwise would not have been heard.

My greatest reward is listening to my clients’ stories, shared through laughter and tears. This is what makes a paralegal’s job much more meaningful. Being a paralegal is about connecting with a person and creating trust so that you can help the attorney build a case around the story that honors the client as a person.

Q. What advice would you give a friend who may be interested in becoming a paralegal?

A. Being a paralegal is a rewarding career. It is fast-paced and at times stressful dealing with deadlines, but if you enjoy serving others and working on a team, then this is the career for you. It’s useful to find a mentor in the legal field who can answer questions about becoming a paralegal. Also, taking an internship before starting your paralegal career can give you enough experience to determine if becoming a paralegal is right for you.

Q. What is your favorite activity to destress?

A. I enjoy writing poetry, reading, going on nature walks, and listening to music. ◆

Continued From Page 35

Mecklenburg County rollout

to file electronically and save the cost of paper and postage is a huge advantage for pro se parties or individuals needing to access the court system,” White said.

She further urges users to exercise patience and avoid procrastinating when using eCourts. Filings are not considered complete until users receive an email notifying them that they have been accepted, and the deadline to file is 5 p.m.

“We are telling everyone not to wait until the last minute,” White said. “If you’re filing on the last day before a statute of limitations runs out and you are notified the next day the document has been rejected, you’re toast.”

In Mecklenburg County, using eCourts is a mixed bag, said Shelli Simontacchi, a senior litigation paralegal with the law firm Hedrick Gardner Kincheloe & Garofalo in Charlotte.

Documents filed in Mecklenburg County before the Oct. 9 eCourts launch date are not currently in the system, she said.

“If you need a case from last year, you have to go to the courthouse and get it the old-fashioned way,” she said.

In some ways, the eCourts system has spawned a measure of camaraderie among paralegals, legal assistants in lawyers, who have banded together to share frustrations and learn from each other.

“In Mecklenburg County, when eCourts first rolled out for us, anyone with a filing would invite the legal assistants, paralegals and attorneys into their office, and together, they would navigate through the process,” Simontacchi said.

White recently presented an informational session on eCourts for the N.C. Association of Defense Attorneys’ fall seminar and published a comprehensive paper on the topic.

Despite the problems, Simontacchi and White are optimistic.

“We’re focusing on making sure everyone is aware of the training and opportunities to learn, and we hope that by the time the system rolls out across the state, the problems will be resolved,” White said. ◆

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CAROLINA PARALEGAL NEWS

NOVEMBER 2023

BESSIE SORGE: FINDING HER PASSION AS A FREELANCE PARALEGAL n BY TERI SAYLOR

G

rowing up in South Florida, Bessie Sorge began working in the legal profession at 19 when she took her first job at a solo practitioner’s office. She worked in nearly every area of law.

After two years, wanderlust took her across the country to Los Angeles, where she discovered a passion for family law.

“I began working at the Law Offices of Rosaline L. Zukerman in Beverly Hills,” she says. “With her encouragement, I enrolled in the paralegal studies program at West Los Angeles College and received my associate degree.”

From California, she moved back to the East Coast and settled in North Carolina, where she honed her skills as a professional paralegal at Myers Law Firm in Charlotte.

In July 2022, Sorge decided to go out on her own and launched her own paralegal business, BLS Litigation Support Services.

“As a freelance paralegal, I work on a variety of full-service projects,” she says. “My company also provides temporary in-office coverage as needed by various law firms.”

She employs three independent contractors and has started training recent North Carolina paralegal graduates on the procedural aspects of family law. She typically works on more than

125 family law cases with 12 attorneys.

“The most rewarding part of being a freelance paralegal is the ability to provide my services to many professionals in our comSORGE munity,” she says.

Q. What attracted you to the paralegal profession?

A. My grandmother was one of my biggest role models. She was an insurance defense paraSee Page 38

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CAROLINA PARALEGAL NEWS

Continued From Page 37 legal. She inspired me every day with her hard work and dedication to her job. Her passion for the law taught me that with hard work I can achieve my goals. I like to say I got my passion for the law from her.

Q. What is a skill set paralegals must possess that others outside the profession may be surprised to know?

A. I think people from the outside may be surprised to know how many hats paralegals wear each day. Not only do paralegals prepare most of the paperwork that gets filed with the court, but we also are the main point of contact on every case. Paralegals are the primary liaison between the attorney and client, the attorney and the opposing counsel, and the attorney and the courthouse staff. A good paralegal will be able to wear each hat — sometimes multiple hats at once — and know how to maneuver through

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SEPTEMBER 2023

A good paralegal will be able to wear each hat — sometimes multiple hats at once — and know how to maneuver through fires that often pop up in the office. Don’t forget to keep that fire extinguisher nearby. fires that often pop up in the office. Don’t forget to keep that fire extinguisher nearby.

Q. Finish this sentence: My workday is great when ...

A. I can get through most of my to-do list.

Q. When you were younger, what did you want to be when you grew up?

A. Growing up, I was always obsessed with the stars, the planets and the mystery of how everything was floating up in the sky. From kin-

dergarten through middle school, I wanted to be an astronaut. Every weekend, I would lie on top of my mom’s truck and try to locate all the constellations. I can still spot many of them to this day.

Q. What is your ultimate bucket list goal and why?

A. I would love to be a traveling paralegal, and I want to backpack through Europe one day. ◆

NOVEMBER 2023

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