South Carolina Lawyers Weekly November 2023

WEEKLY

VOLUME 21 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 Former justice takes position with law firm

PAGE 10

PROFILE Stone, commission boost solicitors

PAGE 7

NOVEMBER 2023 | sclawyersweekly.com

Looking for Co-Counsel?

THERE’S STRENGTH IN NUMBERS. RECENT VERDICTS AND SETTLEMENTS Malpractice $28.5 MILLION Medical Crash $23 MILLION Tractor-Trailer Death at Concrete Plant $20 MILLION Worker Fall Injury $15.7 MILLION Scaffold

Defect and TBI $13.1 MILLION Road Bad Faith $11.7 MILLION Insurance Rollover $10 MILLION UTV Bad Faith $10 MILLION Insurance

IN 2022:

$26 MILLION

PAID IN CO-COUNSEL FEES

yarboroughapplegate.com | 843.972.0150 E V E RY C A S E I S U N I Q U E A N D P RI O R R E S U L T S D O NO GU A R A NT E E F U T U R E O U T C O M E S

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

130 North McDowell Street, Unit B, Charlotte, NC 28204 (704) 377-6221 • FAX(704) 377-4258 E-mail: service@bridgetowermedia.com • Circulation: 1-877-615-9536

Managing Director/Publisher Susan A. Bocamazo, Esq., sbocamazo@lawyersweekly.com

n ACCOUNTING & ADMINISTRATIVE

n EDITORIAL Editor Ross Chandler

Business Manager Kelly Olson

rchandler@lawyersweekly.com

kolson@bridgetowermedia.com

Digital Media Manager Scott Baughman sbaughman@mecktimes.com

n ART & PRODUCTION

n CIRCULATION 1-877-615-9536

Creative Director

service@bridgetowermedia.com

Project Management

n ADVERTISING

Jordan Mazuranic

Advertising Account Executive

Production Specialist

Sheila Batie-Jones

John Reno

sbatie-jones@sclawyersweekly.com

Director of Production Services

Melanie Bingham

Bradley Redmond

W W W . S C L A W Y E R S W E E K LY. C O M SCLAWYERSWEEKLY South Carolina Lawyers Weekly (USPS #020216) is published Monthly with General Statewide Circulation by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 282042411. (919) 829-9333, (800)-876-5297.

1051 Williamsport, PA, 17703-9940

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

To place orders, temporarily stop service, change your address or inquire about billing: Phone: (877) 615-9536 or go to: https:// sclawyersweekly.com/subscribe/for a new subscription or https://sclawyersweekly.com/manage-accountfc/ to manage your account and to renew.

POSTMASTER - Electronic Service Requested. send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box

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

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

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

CONTENTS

COVER STORY p4 | Social media boosts firms that use it thoughtfully OPINIONS p11 | State suspends attorney disciplined in Virginia OPINION DIGESTS p12 | Roundup of rulings on state and federal appeals VERDICTS & SETTLEMENTS p19 | The latest roundup of concluded legal actions COMMENTARY p20 | DEI initiatives still have role at law firms CAROLINA PARALEGAL NEWS p22 | 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

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

NOVEMBER 2023

3

COVER STORY

SWEN

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

4

“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

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

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, Burney Dickey ran afoul of the state’s ethics 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

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

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 sclawyersweekly.com or by scanning the QR code here.

Clooney, Barack Obama, Kim Kardashian 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

NOVEMBER 2023

COVER STORY said. “I was more cautious after that.”

Sheaffer of Robinson Bradshaw didn’t go into detail but said that 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 See Page 6

5

COVER STORY

SWEN

Continued From Page 5

public record, attorneys are cautioned against sharing even hypothetical situations that might run afoul of confidentiality.

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

Depositphotos.com

firm’s social media accounts. He said that while the firm employs an outside agency to create graphics and post content, anything that is 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

6

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

PROFILE

Stone, agency ensure solicitors have needed tools By roSS Chandler

W

hen circuit solicitors need more tools, more people or more of anything else to prosecute cases in South Carolina, they can call Duffie Stone.

Stone knows who to call in Columbia.

The chairman of the state’s Commission on Prosecution C o o rd i n at i o n , his fellow commissioners and the agency’s staff work closely with senior members of the G e n e r a l Assembly, including House Stone Speaker G. Murrell Smith Jr., on matters ranging from drafting bills to appropriating funds for solicitors’ offices.

“We’re the voice for the solicitors in Columbia in many ways,” said Stone, who also serves as 14th Circuit solicitor.

He and the commission also are go-to information sources for legislators. One example is the scores of state-mandated reports the agency files with the General Assembly each year.

Lawmakers also seek solicitors’

VIDEO: See Duffie Stone discuss one of the more challenging cases he has prosecuted as solicitor of the 14th Circuit in a video at sclawyersweekly.com or by scanning the QR code here.

opinions on bills. Stone pointed to two commission members who made key differences: Kevin Brackett from the 16th Circuit, who worked with legislators on a fentanyl-trafficking bill, and the 9th Circuit’s Scarlett Wilson, who worked on a bond-reform bill.

Topping all of the commission’s services is education, something largely unseen by the public. Though Stone already held a degree from USC Law when he took over the 14th Circuit in 2006, the commission had him back in school.

“The first program that the commission puts on is Solicitor 101,” he said.

“That’s basically a class where you are the new solicitor, and we’re going to show you how the solicitor’s office works.”

Case prosecution is just part of it.

The class covers “everything to do with managing the office,” he said, including budgeting, administration, proce-

dures, administrative and legal restrictions, funding sources and applicable laws.

“The Solicitor 101 program was the first thing I got out of the commission,” he said.

The agency also is a technological boon for solicitors. Its efforts include case-management software, evidence storage and a statewide database to better organize and disseminate information about crimes and cases.

It also works in a new field — video from officers’ bodycams. Video must be stored, managed and then provided to defense lawyers.

“That’s before you’re talking about us actually viewing it and using it,” Stone said.

Organizational issues Despite its name, prosecutors are a minority on the 11-member commission. It is composed of Stone, Wilson, Bracket and two other solicitors, all appointed by the governor; one member each from the S.C. Senate and House; the chief of the State Law Enforcement Division; the director of the Department of Public Safety; and one representative each from victim advocates and services and from diversion services.

See Page 8

ISAAC McDUFFIE STONE III AT A GLANCE • Place of birth: Myrtle Beach • Education: Wofford College, 1985, bachelor’s; University of South Carolina School of Law, 1988, Juris Doctor

1997; private practice, Stone Law Firm, and part-time practice, Beaufort County S o licito r ’s O f f ice, 19 97 to 20 0 6; appointed 14th Circuit solicitor 2006, elected 2008.

which witnesses to call. … It was my time to think and not have other distractions.”

• Firms affiliated with: Judge Sidney Floyd, clerk ship, 1988; 5th Circuit Solicitor Office, Columbia, 1989 to 1993; S.C. Sentencing Guidelines Commission 1993 to 1994; private practice, Lewis Reeves and Stone, Columbia, 1993 to

• Civic engagement: Chairman, S.C. Domestic Violence Commission; board of directors of National District Attorneys Association and its past president, 2019; avid runner: “I could get on the road and work through my opening argument,

• Biggest career challenge: “When you’re elected, you have to deal with budgets, the county councils, the General Assembly and getting money for the office. It’s the least entertaining part of the job.”

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

NOVEMBER 2023

• First job: “I went to work at 11 years old at a seafood restaurant at Myrtle Beach.”

7

PROFILE Continued From Page 7

A bill before the General Assembly would add the attorney general to the agency, as well. The proposal also contains a provision that Stone agrees with: Voting power on the commission would be limited to its solicitors.

“It’s our position that only solicitors should be voting on solicitors’ business,” he said.

The commission also works to strengthen a system for prosecuting cases that is dependent on a key element — personnel. “[T]here has to be a sufficient number of prosecutors to put in place a three-tier system: triage, preparation and running court,” he said.

Triage separates the cases that will go to trial from those that will enter diversion programs or be dismissed. Preparation is the research, evidence review and other work that

prepare a solicitor for the trial.

“Running court” is just that — trying cases.

Solicitors’ offices need enough people to work on all three tiers without any of them having to work on two tiers simultaneously. With too few people on the staff, cases linger on the docket or solicitors run the risk of going into a trial less than well-prepared.

“I think everyone recognizes that you need a certain number of prosecutors,” Stone said. “What people don’t recognize is your performance in the courtroom is dependent on how much preparation you put in.”

With the commission, he went to Smith, the House speaker, in 2022 to get money for the system. They came back with $15 million for solicitors’ staffing and $11 million for public defenders.

But just hiring a legion of prosecutors isn’t enough. A lawyer who could

Clarkson, Walsh, & Coulter, a well-established insurance defense litigation firm is seeking to hire a licensed South Carolina attorney for its Greenville, South Carolina office. We are a fast-paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including products liability, automobile negligence, construction, civil rights, professional negligence, insurance coverage and bad faith defense and premises liability. The firm is looking for an individual who can work well within a team structure but can also work independently as the lead lawyer in litigated matters. Please submit a cover letter, resume, and writing sample in confidence to jcarver@clarksonwalsh.com

8

work in a solicitor’s office for a modest salary could earn much more in private practice, making it easier to pay off student loans, buy a home, rear a family and enjoy a better life.

“From a prosecutor’s standpoint, I think [solicitors] ought to be paid like people in private practice,” Stone said.

Representative of justice While the commission takes up much of Stone’s time, he still leads prosecutions in the 14th Circuit, which is composed of Allendale, Beaufort, Colleton, Hampton and Jasper counties in the southern corner of the state. Initially approached for an interview in September, he declined, saying he was busy preparing for a murder case only a week later.

Talking about his cases, he often offers a punishment-must-fit-the-crime outlook. One he cited involved a running gunfight between three men; an errant shot killed an innocent 8-year-old boy.

“I didn’t think it was right to just prosecute the triggerman. … We had to find laws in South Carolina to hold all three culpable,” he said.

Careful research turned up a 1915 case that established the concept of “mutual combat,” covering a fight with multiple people where if one person dies all involved are responsible.

“It was one of the more challenging cases because we didn’t have a clear law to do what we thought we should do in the situation,” he said.

Punishment isn’t always the best option, though. As a hypothetical, Stone said, a service veteran who fought the nation’s enemies overseas might be fighting alcoholism or drug abuse at home. When he runs afoul of the law, the best answer might be a diversion program such as a veterans court instead of a criminal trial.

It falls to the solicitor to make the determination.

“As a prosecutor, your duty is to get to the truth and do what’s right. In a legal sense, they say you’re a minister of justice,” Stone said. ◆

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

NEWS

Charleston Law starts transition to nonprofit status S o u 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

C

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

The decision is in the hands of the American Bar Association and soon will be before the South Carolina Commission on Higher Education, Larry Cunningham, the school’s dean and one of its professors, said.

“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,” he said.

The application caps a long, intense period of preparation for the change. Cunningham 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.

Cunningham said the shift had been long sought even before he arrived at Charleston Law about 3½ years ago. One of the school’s co-owners, J. Edward Bell III, wanted the change made when took his stake in the school in 2015.

Bell co-owns the school with Robert S. Carr and George C. Kosko, two of its five founders.

“They’re the board and the owners of the school. They agreed to make the move,” Cunningham said.

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.

Hal E. Cobb, the foundation’s board chairman, did not immediately return phone messages seeking comment. He is a 2012 graduate of Charleston Law.

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

on Higher Education to see what information it will want on the transition.

However, the agency could wait for the ABA’s decision before moving ahead.

The shift also will involve working with the Internal Revenue Service and the U.S. Department of Education, the former on tax matters — Charleston Law now pays taxes since it is a for-profit entity — and the latter on federal student aid programs.

A student graduates from Charleston School of Law at its commencement ceremony in May. John Strubel, Charleston School of Law

Next steps The school now awaits the decision by the ABA, which does not set a timeline for the acquiescence process.

The application will be considered by the council of its Section of Legal Education and Admissions to the Bar, which meets this month.

“The process takes time,” Bill Choyke, a senior media relations strategist for the ABA said by email. “I have no knowledge if it is [on] the agenda, but these matters are confidential until public notice of a decision.”

Law schools at the University of New Hampshire and Ohio Northern University also submitted applications for changes in October, the ABA’s website says. An application by Elon University School of Law in Greensboro, North Carolina, to open a branch campus in Charlotte, North Carolina, was submitted in July. All await decisions by the ABA. Cunningham accepts the need for patience.

“We have to be really respectful of the ABA and its process,” he said.

“They treat these matters seriously, and they will undertake a full review.”

In the meantime, Charleston Law has reached out to the Commission

NOVEMBER 2023

Key reasons for change Initially approved by the commission in 2003 and opened in August 2004, Charleston Law has been an uncommon fixture — a for-profit school — in the legal community. The number of for-profit schools has gone from six with more than 5,000 students a decade ago to just two now, Reuters news service reported Oct. 23. The other for-profit school is Western State College of Law at Westcliff University in Irvine, California, Cunningham said.

He cited two key reasons to shed for-profit status.

“The top reasons are, first, the ability to fundraise directly is something that a 501(c)(3) nonprofit can do much more easily because donors can receive a tax benefit for their contribution,” he said.

That could bring in more money for scholarships, faculty positions and investments in the facility.

“The second reason is reputational.

There are very few for-profit law schools now,” he said. “We are the only independent law school that is for-profit.”

Cunningham has overseen much of the transition process. He wryly joked about the load he had been bearing as he described the effort.

“Now that Oct. 13 is behind me, I have a little break to focus on my day job,” he said. ◆

9

NEWS

Former SC justice joins Wyche litigation team

K

aye Hearn, a former South Carolina Supreme Court justice, has joined the Wyche law firm as special

counsel.

Based in Conway, she will serve clients statewide as a member of the firm’s litigation team, a news release says.

Tally Parham Casey, Wyche’s Hearn CEO and chair, touted Hearn’s experience and the skills she brings to the firm.

“Her distinguished career on the South Carolina Supreme Court, her leadership in the judiciary and her commitment to excellence in the legal profession make her an invaluable addition to our firm and our clients,” Casey said.

Hearn, in turn, was enthusiastic

S o u 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 about the position, saying, “I look forward to bringing my years of experience to the firm and working alongside its talented team.”

The Wyche position is her latest service in a long, successful legal career.

When Hearn retired in April from the Supreme Court, she was the longest-serving member of the South Carolina State Court Judiciary. She was elected to the Supreme Court in May 2009 and was only its second female member.

She previously served 15 years as a member of the South Carolina Court of Appeals, including 10 years as its chief judge. While chief judge, she also served as president of the Council of Chief Judges, a nationwide network of chief judges of intermediate appellate courts.

Her other legal service includes working as a Family Court judge; a trial attorney with Stevens, Stevens,

Thomas, Hearn and Hearn; and a member of the South Carolina Board of Bar Examiners.

When she graduated from law school, Hearn clerked for state Supreme Court Justice Julius B. Ness. She is the only former law clerk to return to the court as a justice.

Her list of honors also is lengthy. It includes presentation of the Jean Galloway Bissell Award in 2010 by the South Carolina Women Lawyers Association; the Woman of Achievement Award from the South Carolina Commission on Women, presented by Gov. Nikki Haley, in 2012; and the Outstanding Jurist Award by the American Board of Trial Advocates in 2022.

She earned her bachelor’s at Bethany College and her Juris Doctor from the University of South Carolina School of Law, both with honors.◆

Bar exam: Candidates clear hurdle before legal career

A

legal career is much closer for the 298 candidates who passed the South Carolina bar exam when it was administered this summer.

The 12-hour, two-day exam is given in February and July in Columbia, Tina Bryant, manager of the Office of Bar Admissions, said. The minimum passing score is 266.

Leading the list of institutions whose graduates passed was the University of South Carolina School of Law, a release says. Of its 181 candidates, 151 passed, an 80.32% success rate.

From the Charleston School of Law, 71 of 109 graduates passed, a 65.14% success rate.

From out-of-state schools, 76 of 109 graduates passed, a 69.72% success

10

S o u 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 VIDEO: So see a list of candidates who passed the South Carolina bar exam in July, visit sclawyersweekly.com or scan the QR code here.

rate.

The overall pass rate was 73.4%, the release says.

After USC Law and Charleston Law, the next law schools with the largest number of candidates were the University of Georgia, eight, and Liberty and Washington and Lee universities, four each, Lauren Brown, director of public information for the South

Carolina Judicial Branch, said by email.

The exam also drew students from distant schools, including Brigham Young University, Salt Lake City; Lewis & Clark Law School, Portland, Oregon; the University of Iowa; and the University of Nebraska, Brown said.

Passing the exam isn’t the only requirement for a South Carolina law license. Others include being at least 21 years old and of “good moral character,” having graduated from an American Bar Association-accredited law school, scoring at least 77 on the Multistate Professional Responsibility Examination, and not having been disbarred, suspended or subject to bar discipline in another state, Bryant said.

Of the 406 candidates who took the exam, 108 failed, the release says. ◆

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

OPINIONS

Attorney suspended after Virginia Bar discipline B y R as m u s J o r g e n s o n • r j o r g e n s e n @ m o l aw y e r s m e d i a . c o m

T

he Supreme Court of South Carolina suspended Greenville attorney Darren S. Haley from practicing law after his suspension in Virginia for professional misconduct.

Haley had a disciplinary history in Virginia and South Carolina, as well as North Carolina, where he is not admitted to practice law. The South Carolina Supreme Court suspended his practice for a month in 2005 for misconduct that included not returning unearned fees, not pursuing several client matters, losing a client file, trying to establish personal relationships with female clients and failing to respond to Office of Disciplinary Counsel inquiries. In Virginia, he was privately reprimanded by the state bar in 2009 for having insufficient funds in his trust account to honor five checks.

The North Carolina issue arose when Haley submitted a pro hac vice application in 2017 but did not disclose the previous disciplinary actions against him. During North Carolina’s disciplinary investigation, Haley again did not disclose his disciplinary history when filing a pro hac vice motion in a federal court in New York. In 2019, the North Carolina State Bar reprimanded Haley for failing to disclose, and South Carolina followed suit.

Despite being required to do so, Haley did not notify the Virginia State Bar of the discipline. He later said he thought North Carolina reported their actions to Virginia.

That same year, he overdrew his trust account in Virginia, triggering a disciplinary investigation revealing that he had engaged in a pervasive pattern of financial misconduct, including regularly depositing unearned fees into his operating account, using his trust account to pay for personal and business expenses and overdrawing his trust account

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

at least twice and his law firm operating account 53 times between Jan. 1, 2018, and April 20, 2020.

Haley also made misleading statements about a client living in South Carolina rather than Virginia, as South Carolina allows nonrefundable legal fees while Virginia does not. The Virginia State Bar concluded Haley intentionally lied about the client’s residence to skirt repercussions. The bar’s disciplinary board found that Haley violated numerous rules of professional conduct, including not informing the bar of his North Carolina discipline, and imposed an 18-month definite suspension, which the Supreme Court of Virginia affirmed in August 2022.

The South Carolina Bar received notice of the Virginia suspension in September 2022. Under the rules concerning reciprocal discipline, a lawyer disciplined in another state will generally receive identical discipline in South Carolina unless he or she can make the case that such punishment would be unwarranted.

Haley’s recommendation Haley argued he should only receive a six-month suspension in South Carolina because the state bar had already punished him for the nondisclosures in the North Carolina pro hac vice application, which he claimed formed the basis of a significant part of the 18-month Virginia suspension.

The Office of Disciplinary Counsel countered that, while South Carolina did sanction Haley for those nondisclosures, the Virginia suspension also concerned Haley’s dishonesty in not reporting the North Carolina discipline to the Virginia State Bar. At the June hearing before the Supreme Court, Haley abandoned his claim that a six-month suspension would be appropriate. The court then

NOVEMBER 2023

found no reason to justify a different discipline than what was given in Virginia. Haley’s 18-month suspension was retroactive to Sept. 20, 2022, when the ODC received the notice of discipline in Virginia.

Justice John Cannon Few, the sole dissenter from the majority opinion authored by Chief Justice Donald W. Beaty, argued the court’s decision was not harsh enough.

Citing Haley’s extensive disciplinary history and the Supreme Court of Virginia’s finding that Haley engaged in a long pattern of dishonest conduct in multiple jurisdictions, Few said the South Carolina court would have never considered just 18 months if not because this case arose as reciprocal discipline.

The Supreme Court can impose a different discipline if the misconduct warrants substantially different discipline in this state, Few said, quoting Rule 29(d) of the Rules for Lawyer Disciplinary Enforcement. While he did not say what discipline he would find appropriate, Fox said he would impose a penalty corresponding to the severity of Haley’s misconduct.

“I thought the South Carolina Bar was fair,” Haley said.

He explained the reason he withdrew the claim that he should only receive a six-month suspension is that he is not sure he wants to continue practicing law.

“At the time when I filed this, I was still contemplating practicing, but I haven’t practiced since ’22. So, at that point, it really wasn’t a lot to fight about,” he said. “My suspension has been over in Virginia for six, seven months, and I have yet to even file the paperwork to get reinstated. I had started shutting down to go into other directions three or four years ago, before this ever happened.”

The case is In re: Haley, 2022001523. ◆

11

OPINIONS

To view additional opinion digests, visit www.sclawyersweekly.com

Civil Rights Jury Clarification — Jury Charge — Nominal Damages — Constitutional Violation — Fourth Amendment Rights While the trial court erred in not requesting clarification from the jury and denied a vulnerable adult’s request to charge the jury on nominal damages, the error was harmless.

We affirm the court of appeals in result.

An appeal arose from a defense verdict in a case alleging law enforcement officers and the City of North Charleston violated the civil rights of Jane Doe, a vulnerable adult. During its deliberations, the jury submitted several questions, the last of which was ambiguous. The trial court answered the question without requesting clarification from the jury and denied Doe’s request to charge the jury on nominal damages for a third time. The court of appeals affirmed.

Doe, who has Alzheimer’s disease and dementia, sued police officers and the

12

City after her daughter, who lived with her, was arrested for assault on a police officer and Doe was left alone until the following day when she was found in obvious mental distress and wearing a soiled adult diaper. Pertinent to this appeal were Doe’s causes of action against the officers and the City pursuant to 42 U.S.C. § 1983. Doe claimed the officers violated her Fourth Amendment rights by entering her dwelling without a warrant. Doe’s section 1983 claim against the City was based on her contention that the City engaged in deliberate indifference to her rights by failing to properly train its officers.

Doe’s appeal centered on the trial court’s response to the last of several questions submitted during deliberations.

Doe contended the disputed question inquired into damages (including nominal damages), not the threshold issue of whether there was a constitutional violation. Doe argued the trial court’s refusal to again instruct the jury on nominal damages was misleading, incorrect, and omitted the language responsive to the jury’s actual question. The court of appeals concluded the disputed question was ambiguous.

We agree with the court of appeals that the disputed question was susceptible of more than one meaning. However, the court of appeals erred in applying a deferential standard of review of the trial court’s decision as to how it would respond to the question. If confronted with an ambiguous jury question, the trial court cannot select one reasonable interpretation and ignore other reasonable interpretations. If the parties do not agree how the trial court should respond to the question, the trial court must seek clarification from the jury. Failure to do so is an error of law.

Doe contended the trial court’s error requires reversal and a new trial, arguing the question of whether there was a constitutional violation and the unique role of nominal damages in a section 1983 action go hand in hand such that a recharge on the elements of a section 1983 claim without a recharge on nominal damages is

manifestly prejudicial. Under the circumstances present in this case, we disagree.

The officers’ verdict forms instructed the jury to first determine whether “[the officer] violated [Jane] Doe’s constitutional rights by making a warrantless entry into [Jane] Doe’s residence. …” The specificity of that question, whether Doe had proven the officer had made an unconstitutional warrantless entry, is important. If the jury had answered “Yes,” it would have moved to the damages questions. The jury’s “No” answer to the first question establishes that it determined Doe had not proven an unconstitutional warrantless entry. The “No” answer rendered moot the question of damages. We hold that in this case the trial court’s mistake did not affect the verdict. A repeat of the nominal damages charge would not have resulted in a different answer to the first question on the verdict forms. Therefore, the trial court’s error in not seeking clarification of the question was harmless.

The court of appeals erroneously applied a deferential standard of review in reviewing the trial court’s reasoning of how the trial court would respond to the jury’s ambiguous question. We hold that when a trial judge receives an ambiguous question from the jury and the parties do not agree how the trial court should respond, the trial court must seek clarification from the jury. Once the jury has clarified the question, the trial court may answer the question in the manner permitted by law. Here, we hold that a recharge on nominal damages would have had no impact on the jury’s “No” answer to the first question on each verdict form.

Therefore, the error was harmless and we affirm the court of appeals in result.

Affirmed in result.

Estate of Jane Doe 202 v. City of North Charleston (Lawyers Weekly No. 010-05523, 12 pp.) (George C. James, J.) Appealed from Charleston County Circuit Court (Deadra L. Jefferson, J.) Gregg E. Meyers, of Byron, M.N., for petitioner Jane Doe 202; Sandra J. Senn, of Senn Legal, LLC of

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

OPINIONS Charleston, and Andrew F. Lindemann, of Lindemann Law Firm, P.A. of Columbia, for respondents City of North Charleston, Anthony M. Doxey, Leigh Anne McGowan, and Charles Frances Wohlleb. South Carolina Supreme Court

Constitutional Voluntariness of Confession — Miranda Waiver — Coerced Confession Petitioner Robert Miller III was convicted of the brutal murder of 86-year-old Willie Johnson. Following the murder, petitioner, who was 15 years old at the time, confessed four times: twice to his close friends and twice to law enforcement. All four confessions were admitted at trial, three without objection. This appeal centered around the voluntariness of petitioner’s fourth and final confession to two agents of the South Carolina Law Enforcement Division (SLED).

After examining the totality of the circumstances surrounding the fourth confession, we hold that petitioner’s free will was not overborne, and his confession was voluntary.

We therefore affirm.

Petitioner contended that there were several factors that tended to show his fourth confession to Agents Richard Johnson and Natasha Merrell was coerced, including his youth, “limited cognitive functioning,” promises of leniency by Agent Johnson, the alleged failure to adequately mirandize him, the use of sophisticated interrogation techniques, and the absence of a parent during the interview. While acknowledging that certain facts in isolation could be viewed as coercive, we disagree that the totality of the circumstances indicates petitioner’s fourth confession was involuntary. Specifically, looking first at the details of the interrogation, petitioner was advised of his constitutional rights, including his right to remain silent and his right to counsel, and asked if he understood them before signing a Miranda waiver. By all accounts, petitioner appeared to understand his rights and the questions he was subsequently asked. While petitioner was not re-mirandized before his interview with Agents Johnson and Merrell,

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

the break between the interview with Chief Marvin Williams (in which petitioner was mirandized) and the interview with Chief Williams and Agents Johnson and Merrell was only 30 minutes, and petitioner did not leave the custodial interrogation setting in the interim. Such a minimal break in the continuity of the interview did not require petitioner to be re-mirandized, especially because there was no allegation that something occurred after petitioner’s Miranda waiver that would have affected his understanding of his rights.

During the interview, Petitioner was not handcuffed and, at that time, had not been charged with any crimes. Likewise, throughout the overwhelming majority of the questioning, petitioner was in the room with only one law enforcement officer at a time. The questioning by Agents Johnson and Merrell was not unduly repetitious or prolonged.

The SLED agents did not make petitioner any explicit promises of leniency, instead telling petitioner they would relay his cooperation to the solicitor. Additionally, Agent Johnson never made any misrepresentations to petitioner about the evidence against him and there was no contention law enforcement threatened or physically punished petitioner.

As to the characteristics of the defendant and looking only at what the trial court knew at the time of the Jackson hearing, petitioner was only 15-and-a-half when interviewed and “much smaller” than the SLED agents.

However, statements by minors significantly younger than 15 have been found to be voluntary and admissible, and youth alone does not require exclusion of the confession.

Moreover, petitioner communicated in an understandable way, was in “good physical condition,” and did not appear to be under the influence of drugs or alcohol at the time of the interview.

Nonetheless, petitioner’s education level was limited, in part because of his young age and in part because he struggled in school.

However, the trial court made a factual finding that he was “pretty street smart.” The trial court concluded that, despite petitioner’s limited formal education, his past experiences with law enforcement and “street smarts” helped to render his confession voluntary. The factual findings regarding peti-

NOVEMBER 2023

tioner being “street smart” are supported by “any evidence” and, therefore, must be upheld under our standard of review. With petitioner’s “street smarts” in mind, we find his education and experiences weigh in favor of a finding of voluntariness.

Accordingly, with respect to petitioner’s due process challenge, we hold petitioner’s confession to Agents Johnson and Merrell was voluntary under the totality of the circumstances. Under our deferential standard of review, we conclude there is evidence in support of the trial court’s findings that petitioner was properly mirandized, understood his rights, and had an opportunity to invoke his rights before being interviewed by law enforcement. We therefore find his statements voluntary under the Fifth Amendment.

Even were we to find petitioner’s statement to Agents Johnson and Merrell involuntary, it is indisputable that any possible error resulting from admitting petitioner’s involuntary statement was harmless beyond a reasonable doubt.

Affirmed.

State v. Miller (Lawyers Weekly No. 010053-23, 20 pp.) (John W. Kittredge, Acting C.J.) Appealed from Allendale County Circuit Court (R. Lawton McIntosh, J.) Appellate Defender Lara M. Caudy, of Columbia, for petitioner; Attorney General Alan McCrory Wilson, Chief Deputy Attorney General W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Senior Assistant Attorney General Mark Reynolds Farthing, all of Columbia; and Solicitor Isaac McDuffie Stone III, of Bluffton, all for respondent. South Carolina Supreme Court

Contract Breach of Contract — Breach of Implied Covenant of Good Faith and Fair Dealing — Unjust Enrichment — Arbitration Great Southern Homes, Inc. (GSH) appealed the circuit court’s order denying its motion to dismiss and compel arbitration in this action brought by Jonathan See Page 14

13

OPINIONS Continued From Page 13 Mart, individually and on behalf of other similarly situated homeowners. Mart entered into a contract with GSH to purchase a custom-built home and later brought this action for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. Mart also sought declaratory relief to address two questions: 1) the validity of GSH’s contract provision requiring a home buyer to waive the implied warranty of habitability without separate consideration, and 2) the validity of GSH’s effort to transfer its warranty obligations to a third party upon the closing of the transaction.

Pursuant to our supreme court’s holding in Damico v. Lennar Carolinas, we reverse and remand for arbitration.

In July 2015, Mart contracted with GSH, a large builder and seller of new homes, to purchase a newly constructed home in the Longview North subdivision of Kershaw County. GSH required Mart to execute its proprietary “Contract for Sale” (Sales Contract) containing a disclaimer of warranty rights, including the implied warranty of habitability. In place of this implied warranty protecting new home buyers, GSH substituted an “Express Limited Warranty” (the Warranty) through a third party, StrucSure Home Warranty.

Before the arbitration provision appears on page 3, paragraphs addressing termite protection, a radon notice, risk of loss, and default follow the limited warranty section of the Sales Contract.

GSH moved to dismiss Mart’s complaint and to compel arbitration, relying upon the language of the arbitration clause in the Sales Contract. Following a hearing, the circuit court found the arbitration clauses in the Sales Contract and the Warranty both covered claims “arising out of or relating to” the Sales Contract and “these arbitration clauses are in conflict in numerous material respects.” Therefore, the circuit court denied GSH’s motion, concluding “there was no mutual assent between Mart and Great Southern as to any arbitration procedure; and, therefore, there was no meeting of the minds as to an agreement to arbitrate” claims arising

14

out of or related to the Sales Contract.

On appeal, GSH raised several points challenging the circuit court’s order, but the underlying inquiry boiled down to whether the circuit court erred by incorporating the provisions of the Express Limited Warranty into the parties’ Sales Contract when examining the parties’ agreement to arbitrate pursuant to the independent arbitration agreement in the Sales Contract. GSH framed the question as “whether two separate contracts, each with a distinct purpose and related arbitration provision, can be conflated to produce a result of no arbitration whatsoever.”

The crux of Mart’s complaint was that GSH’s sales practice of seeking “a disclaimer of critical warranty rights implied by law in South Carolina and designed to protect the new homebuyer, who the law recognizes is at a significant disadvantage in sophistication and bargaining power with a large volume homebuilder such as Great Southern” is in itself unconscionable. And, while the circuit court’s order did not address whether the specific terms of the Sales Contract’s arbitration clause were unconscionable, Mart did not concede this point and raised unconscionability in his opposition to GSH’s motion to dismiss and compel arbitration. But Mart’s purported challenge to the standalone arbitration provision was merely an argument that the court “should read the [a] rbitration paragraph of the [Sales] Contract ... in conjunction with the limitation on remedies provisions contained under separate paragraphs of the agreement.”

Mart was required to show that the language in the arbitration section alone was unconscionable. Because Mart did not separately challenge the standalone arbitration provision in the GSH Sales Contract as unconscionable or as lacking material terms, we are handcuffed with respect to Mart’s challenge of the validity of the waiver of implied warranties.

Because we agree with GSH that the circuit court erred in considering the terms of the Warranty, as opposed to the standalone arbitration provision in the Sales Contract, we need not further examine

the circuit court’s findings that the arbitration provisions of the two documents “directly and materially conflict with one another.” However, “[t]he ‘making’ or formation of—in the sense of the very existence of—the agreement to arbitrate is always a question for the court, not the arbitrator.”

The standalone arbitration clause here differs from those found unconscionable in South Carolina cases considering adhesion contracts between sophisticated builders and individual new home purchasers. As a result, to the extent the question of unconscionability is properly before this court, we find the standalone arbitration provision of the Sales Contract here is not unconscionable.

Reversed and remanded.

Mart v. Great Southern Homes Inc. (Lawyers Weekly No. 011-073-23, 13 pp.)

(Stephanie P. McDonald, J.) Appealed from Richland County Circuit Court (DeAndrea G. Benjamin, J.) Ronald L. Richter, Jr. and Scott Michael Mongillo, both of Bland Richter, LLP, of Charleston; and Eric Steven Bland, of Bland Richter, LLP, of Columbia, all for appellant; Charles Harry McDonald, of Belser & Belser, PA, of Columbia; Beth B. Richardson, of Robinson Gray Stepp & Laffitte, LLC, of Columbia; Terry E. Richardson, Jr., of Richardson, Thomas, Haltiwanger, Moore & Lewis, of Barnwell; Brady Ryan Thomas, of Richardson, Thomas, Haltiwanger, Moore & Lewis, of Columbia; and Matthew Anderson Nickles, of Rogers, Patrick, Westbrook & Brickman, LLC, of Columbia, all for respondent. South Carolina Court of Appeals

Corporate RICO — Motion for Reconsideration — Treble Damages — Business or Property Injury While the decision of plaintiff’s father to accept a bribe, and the defendants’ corrupt decision to offer one, upended plaintiff’s basketball career and dramatically altered his life, the Racketeer Influenced

NOVEMBER 2023

See Page 16

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

SOUTH CAROLINA CHAPTER

Available Dates Calendars Online for the State’s Most Experienced Neutrals

Ellen Adams

Jon Austen

Kevin Barth

Bob Calamari

Sam Clawson

Theron Cochran

Danny Crowe

Anne Culbreath

Kip Darwin

Vernon Dunbar

Earl Ellis

Eric Englebardt

Karl Folkens

Amy Gaffney

Mills Gallivan

Harry Goldberg

Mitch Griffith

Rob Hassold

Richard Hinson

Marvin Infinger

Becky Laffitte

Regina H. Lewis

Anthony Livoti

Bill Lyles

Stuart Mauney

David McCormack

Ben McCoy

John Moylan

Lee Plumblee

Darren Sanders

Franklin Shuler

Lana Sims, Jr.

Ronald Stanley

Tom Stephenson

Matt Story

Walter B. Todd, Jr.

Ned Tupper

Brad Waring

Derrick Williams

Thomas Wills

Bo Wilson

Visited by over 1000 unique legal staff monthly, SCMediators.org assisted firms in the scheduling of over 3000 mediations in 2022, for free!

Visit the Academy’s free database of over 1000 of the nation’s top litigator-rated neutrals at www.NADN.org

OPINIONS Continued From Page 14 and Corrupt Organizations Act is not the avenue through which plaintiff may seek relief.

We affirm the district court’s denial of plaintiff’s motion for reconsideration.

In 2017, plaintiff Brian Bowen II was a promising high-school basketball player who aspired to play professionally. At the end of high school, Bowen committed to play NCAA Division I basketball for the University of Louisville in exchange for a full, four-year scholarship. Bowen hoped that by playing Division I basketball, he could become a top NBA prospect. Those hopes were dashed when a college basketball bribery scheme unraveled, exposing that Bowen’s father, Brian Bowen Sr., accepted a bribe in connection with Bowen’s decision to play for Louisville.

Consequently, Bowen lost his NCAA eligibility, and Louisville cut him from the team.

Bowen sued the central figures in the bribery scheme under RICO to recover treble damages, including lost future professional earnings and the attorney’s fees and costs he incurred trying to restore his NCAA eligibility. The district court granted summary judgment to defendants, concluding that Bowen did not demonstrate an injury to his business or property, as required for a private civil RICO claim. The district court later denied Bowen’s motion for reconsideration. Bowen appealed both rulings.

Congress made the civil RICO cause of action for treble damages available only to plaintiffs “injured in [their] business or property” by a defendant’s RICO violation.

Without an injury to “his business or property,” even a plaintiff who can prove he suffered some injury because of a RICO violation lacks a cause of action under this statute.

Bowen first claimed a business or property interest “in the contractual benefits he secured from [Louisville] through his” scholarship agreement. We may grant that Bowen had a business or property interest in the contractual benefits of his scholarship agreement with Louisville, but Bowen has not demonstrated an injury to

16

that interest because the benefits he lost were not promised in the scholarship agreement. To the contrary, Bowen received everything to which his scholarship entitled him. Because the scholarship agreement is unambiguous, we decline to consider parol evidence to interpret it. And because Louisville allowed Bowen to keep his scholarship even after withdrawing him from the team, he did not suffer an injury to his business or property interest in the agreement. Accordingly, the district court correctly concluded that Bowen has not demonstrated he suffered a cognizable injury under his scholarship agreement with Louisville.

Next, Bowen contended that the loss of his NCAA eligibility was a cognizable business or property injury for purposes of Section 1964(c). We disagree. Although eligibility may be valuable to the individual student-athlete, it is not property.

Moreover, being eligible to play Division I college basketball did not confer on Bowen a right, much less a property right, to do so. Rather, Bowen’s eligibility gave him only the opportunity to play college basketball. Accordingly, we affirm the district court’s determination that Bowen’s lost NCAA eligibility cannot support his RICO action against defendants.

Finally, Bowen contended that the nearly $30,000 in attorney’s fees and costs he and his family incurred trying to restore his NCAA eligibility is an injury sufficient to maintain a RICO cause of action.

Certainly, lost money is a concrete injury to business or property. However, pecuniary losses flowing from a non-cognizable injury do not satisfy Section 1964(c)’s requirement.

Affirmed.

Bowen v. Adidas America Inc. (Lawyers Weekly No. 001-098-23, 43 pp.) (Allison Jones Rushing, J.) Appealed from U.S. District Court for the District of South Carolina, at Columbia (Joseph F. Anderson Jr.) William Walter Wilkins, Nexsen Pruet, LLC, Greenville, South Carolina, for appellant; William H. Taft, V, Debevoise & Plimpton LLP, New York, New York, for appellees; on brief: W. Mullins McLeod, Jr., Colin V. Ram, McLeod Law Group LLC,

Charleston, South Carolina, for appellant; Matthew T. Richardson, Mary Lucille Dinkins, Wyche, Columbia, South Carolina; Andrew M. Levine, Nathan S. Richards, Matthew D. Forbes, Debevoise & Plimpton LLP, New York, New York, for appellee adidas America, Inc.; Cory E. Manning, Columbia, South Carolina, Robert L. Lindholm, Charlotte, North Carolina, Wesley T. Moran, Nelson Mullins Riley & Scarborough, LLP, Myrtle Beach, South Carolina, for appellee Christopher Rivers; Terry A. Finger, Finger, Melnick, Brooks & LaBruce, Hilton Head Island, South Carolina, for Appellee Christian Dawkins.

Deborah B. Barbier, Deborah B. Barbier, LLP, Columbia, South Carolina, for appellee James Gatto. Richard J. Zack, Thomas H. Cordova, Troutman Pepper Hamilton Sanders LLP, Philadelphia, Pennsylvania; Wilbur E. Johnson, Clement Rivers, LLP, Charleston, South Carolina, for appellee Munish Sood Fourth Circuit Court of Appeals

Criminal Practice Due Process — First Impression — No-Arrest Agreement — Insufficient Cooperation The government must comply, not only with plea agreements and non-prosecution agreements, but also with law enforcement officers’ agreements not to arrest. In this case, it is unclear whether the officer made a promise not to arrest if defendant gave up all the cocaine that he had in his possession, whether defendant relied on this promise when he gave the officer a bag containing 0.7 grams of cocaine base, and whether the officer breached the promise when — after deciding defendant had not provided substantial assistance to law enforcement — he obtained arrest warrants, arrested defendant in his home, and found 17.8 grams of cocaine in defendant’s home.

We vacate the district court’s denial of defendant’s motion to suppress and remand for a determination as to whether a non-arrest promise was made, relied upon and breached.

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

OPINIONS Facts On September 24, 2019, a police officer saw Manley Johnson, whom the officer knew had a suspended license, drive away from defendant’s home. The officer stopped Johnson, a K9 officer’s sniff was positive, and a search of Johnson’s vehicle produced 0.1 grams of cocaine base.

The officer drove to defendant’s home.

Defendant met the officer on the front porch and basically acknowledged selling cocaine to Johnson. The officer told defendant that, if he gave the officer all the cocaine he had, everything would still be “squared away.” Defendant gave the officer a bag containing 0.7 grams of cocaine base.

Thereafter, defendant helped law enforcement locate and arrest a man for whom the police had an outstanding arrest warrant. On November 7, 2019, after defendant provided no more assistance to the police, the officer obtained arrest warrants based on the cocaine seized from Johnson and defendant on September 24, 2019. Defendant was arrested in his home, a search of which produced 17.8 grams of cocaine base, leading to defendant’s indictment for possession with intent to distribute cocaine base.

Due Process United States v. Carter, 454 F.2d 426 (4th Cir. 1972), stands for the proposition that if the government utilizes its discretion to strike bargains with potential defendants, those bargains can be enforced against the government. While Carter concerned a plea agreement, we have since recognized that a non-prosecution agreement invokes the same constitutional due process concerns as a plea agreement. We have also noted that, when certain conditions are met, courts may enforce informal grants of transactional immunity.

The fact that the government may have learned of a defendant’s wrongdoing prior to making an agreement does not place the government’s promise of leniency beyond the scope of the agreement. Quite the opposite, it is the government’s knowledge of wrongdoing that so often serves

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

as consideration for such agreements. As a result, the government’s promise not to act on that knowledge cannot be deemed categorically unenforceable.

Here, if the officer did breach a promise not to arrest defendant for either quantity of drugs recovered on September 24 in exchange for his cooperation, defendant could seek to enforce that promise against the government. To be sure, Carter and its progeny do not address the precise promise defendant alleges occurred here: a promise not to arrest. Yet we see no reason to treat a non-arrest agreement any differently than the non-prosecution and plea agreements we have previously held enforceable against the government.

In non-arrest agreements, as in non-prosecution and plea agreements, the government wields its vested authority to extract cooperation from a potential defendant in exchange for a promise of leniency. A police officer is not entitled to arbitrarily breach these agreements, which have become a central feature of the many drug-related prosecutions that occupy our criminal legal system each year. In all such contexts, therefore, where an individual fulfills his obligations under the agreement, settled notions of fundamental fairness may require the government to uphold its end of the bargain, too.

To hold otherwise would rubber-stamp a police practice that stands to undermine the honor of the government and public confidence in the fair administration of justice.

We therefore remand to the district court to determine in the first instance whether the non-arrest promise was made, relied upon and breached as alleged. If the district court determines the officer did breach such an agreement, it should also determine whether specific performance or other equitable relief is appropriate to remedy that breach.

Vacated and remanded.

United States v. Bailey (Lawyers Weekly No. 001-084-23, 16 pp.) (Roger Gregory, J.) No. 22-4134. Appealed from USDC at Greensboro, N.C. (Carlton Tilley, S.J.) Thomas Kieran Maher and Amos Tyndall for appellant; Craig Matthew Principe, Sandra Hairston and Terry Meinecke for

NOVEMBER 2023

appellee. United States Court of Appeals for the Fourth Circuit.

Criminal Practice New Trial — State’s Negotiations With Key Witness — Materiality of Nondisclosure The trial court did not abuse its discretion in granting the convicted defendant a new trial. The State had the duty to disclose evidence of the negotiations and deal because its key witness and the State formed an agreement before the witness breached that agreement. The State’s failure to disclose the negotiations and the accepted offer with the witness deprived defendant of a fair trial because defendant did not have the ability to impeach the witness. There also exists a reasonable likelihood the jury would have decided differently had defendant impeached the witness based on the agreement.

We reverse and remand for a new trial.

A jury convicted Corey Brown of conspiracy to commit grand larceny, armed robbery, and kidnapping. In a post-trial motion, Brown moved for a new trial, arguing the State’s failure to disclose its negotiations with key witness Shadarron Evans. The trial court granted the motion, and the State appealed. The court of appeals reversed the grant of a new trial, concluding that no plea offer had been extended. The panel then remanded to the circuit court to make findings as to whether the evidence was material to Brown’s guilt.

Latavius Spearman was robbed and kidnapped at gunpoint by a group of five men. At Brown’s trial, the State called Spearman and two of Brown’s co-defendants as witnesses: Antonio Nicholson and Evans. Nicholson confirmed both the identity of Brown and Spearman’s version of events. However, Nicholson did not know Brown before the incident and initially failed to pick him out of a line-up.

Evans testified he was a friend of Brown’s and they participated in the robbery and See Page 18

17

OPINIONS Continued From Page 17 kidnapping of Spearman. No physical evidence connected Brown to the crime, and Spearman could not initially identify him as one of the robbers. During his testimony, Evans assured the court and jury that the State did not make him any promises for his cooperation.

After trial, Brown’s counsel gained access to jailhouse phone call recordings from Evans and discovered that the State extended plea offers to Evans and that they engaged in extensive negotiations.

The State admitted it did not disclose these negotiations because it did not believe it had made disclosable offers under Brady.

After Brown was convicted and sentenced, the State reduced Evans’s original charges from kidnapping and armed robbery to false imprisonment and conspiracy to commit grand larceny. He pleaded guilty and received a sentence of four years on the conspiracy charge and eight years, suspended to four years, on the false imprisonment charge. The same judge that presided over Brown’s trial also sentenced Evans.

The trial court concluded that the State’s failure to disclose the “material evidence” of Evans’ testimony prejudiced Brown. The State appealed the order granting a new trial, and the court of appeals reversed and remanded the case back to the circuit court to determine if the nondisclosure was material. Brown argued the court of appeals erred in reversing the grant of a new trial because the State admitted that plea offers extended to Evans were not disclosed. As to materiality, Brown contended the jurors would have decided differently had they known about Evans’ avoiding a possible life sentence in exchange for his testimony.

We conclude that the State and Evans entered into a sufficient agreement. The lack of a written document did not negate the existence of a deal.

In remanding the case for a finding of materiality, the court of appeals seems to ignore the trial court’s finding that the failure to disclose the “material evidence”

18

prejudiced Brown. We believe that Evans’ testimony was material and the failure of the State to disclose its negotiations with Evans had a reasonable probability of affecting the outcome of the trial.

Therefore, we find there is a reasonable probability the jury would have decided differently if the State’s plea negotiations with Evans had been disclosed and Brown had been able to impeach Evans with this information.

Reversed and remanded.

The State v. Brown (Lawyers Weekly No. 010-056-23, 10 pp.) Donald W. Beatty, C.J.) Appealed from Greenwood County Circuit Court (Eugene C. Griffith Jr., J.) Appellate Defender David Alexander, of Columbia, for petitioner; Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, for respondent.

Public Utilities Rate Making — Multiple Appeals — Reparations Surcharge — Appeals Bond or Other Arrangements It took several appeals and several years for the appellant-utility to finally get the rate increase amount it had requested (though in a different configuration). Although the utility asserts that it was unable to afford an appeals bond for the whole of the appellate period, the Public Service Commission correctly determined that it lacked the authority to allow the utility to recoup its lost fees via a reparations surcharge.

Affirmed.

S.C. Code Ann. § 58-5-240(D) contemplates two possible routes for a utility to collect higher rates during an appeal once the Public Service Commission (PSC) has disallowed revenues sought in a rate-making application: the first is securing an appellate bond, and the second is making “other arrangements satisfactory to the [PSC] for the protection of parties interested.” There are no other options or exceptions set forth in that subsection of the statute.

As the PSC explained, “When a statute creates a substantive right and provides a remedy for infringement of that right, the [injured party] is limited to that statutory remedy.” Here, the statutory remedies do not include a reparations surcharge; therefore, the PSC has no authority to grant a utility equitable relief via such a surcharge.

Were we to agree with appellant and allow it to collect a reparations surcharge following a successful appeal, it would entirely obviate the need for a utility to ever secure an appellate bond or make “other arrangements,” thus placing all the risk on ratepayers and none on the utility. Given the clear system of checks and balances set forth in § 58-5-240(D) weighing the competing interests of utilities and their customers, we reject the suggestion that the General Assembly intended a utility to circumvent the protections afforded ratepayers.

We find it notable that appellant exclusively relied on the appellate bond option set forth in § 58-5-240(D) and never explored the second option available, that being to seek “other arrangements satisfactory to the [PSC].” This second (and presumably cheaper) option was specifically drawn to appellant’s attention during the proceedings before the PSC, yet appellant chose not to pursue it despite its alleged inability to pay for an extension of its appellate bond. Given the clear options set out in § 58-5-240(D), it was incumbent upon appellant to either secure an appellate bond or request “other arrangements.”

Appellant’s failure to do so is fatal to its request for a reparations surcharge.

Affirmed.

Daufuskie Island Utility Co. v. South Carolina Office of Regulatory Staff (Lawyers Weekly No. 010-051-23, 13 pp.)

(John Kittredge, J.) Appealed from the Public Service Commission. Thomas Gressette and George Trenholm Walker for appellant; Andrew McClendon Bateman, Benjamin Parker Mustian, Steven Hamm, John Julius Pringle and Lyndley Ritz Zwing Bryant for respondents. South Carolina Supreme Court ◆

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

VERDICTS & SETTLEMENTS $950,000 VERDICT

County prisoner denied treatment for infected abscess Action: Jail neglect Injuries alleged: Large hole in skull, headaches, short-term memory loss and mild aphasia; noneconomic damages include past pain Case name: Rhoads vs. Aiken County Detention Center Court/case no.: Aiken County Court of Common Pleas / 2020-CP-02-02238 Judge: Eugene Griffith Demand: $50,000 early in the case; $125,000 by time of trial Highest offer: $20,000 Amount: $950,000 Date: Oct. 13, 2023 Attorneys: Francis “Brink” Hinson of HHP Law Group, Columbia, and Patrick McLaughlin of Wukela Law Firm, Florence (for the plaintiff); Andrew Lindemann of Lindemann Law Firm, Columbia (for the defendant) Plaintiff was 28 when she was held at

the Aiken County Detention Center as a repeat offender for relatively minor crimes (shoplifting and bad checks) and more serious ones (burglary and drug distribution). A few days into her detention, she complained of a growing “bump” on the side of her head.

For the next three weeks, plaintiff repeatedly complained about the bump and reported that it had grown larger and become very painful.

Several witnesses (both detainees and guards) testified that the swollen area on the side of plaintiff’s head eventually grew to be as large as grapefruit. Although plaintiff was seen numerous times by the jail’s medical staff, the health care professionals simply prescribed pain medications and treated the swollen place as if it was related to a minor trauma.

Not receiving medical care, plaintiff lodged a “peaceful protest” during recreation time and said that she would not return to her cell and would only go to a hospital. The jail’s

staff responded by treating this peaceful protest as barricading and placed her in solitary confinement.

About 26 days after the “bump” on her head was first noticed and about 14 days after it had become shockingly large, plaintiff lost consciousness and was finally taken to a local hospital where a tremendous infectious abscess on the side of her head was diagnosed.

The abscess was so large and had been there so long that it had destroyed a large section of plaintiff’s skull, invaded her brain and caused a right-to-left shift of the brain.

Claims against the medical staff were settled before trial.

The sheriff’s office primary defense position was essentially, “The correctional officers have the right to rely on our third-party medical staff.” Plaintiff’s response was that a prisoner with an obviously serious, worsening medical condition should be taken to the hospital regardless of what medical staff members say.◆

$2 MILLION SETTLEMENT

Settlement reached in fatal carbon monoxide poisoning Action: Civil rights Injuries alleged: Death by poisonous gas Case name: Danielle Washington as personal representative of the estate of Calvin Witherspoon Jr. v. Housing Authority of the city of Columbia (aka Columbia Housing Authority) Court/case no.: U.S. District Court for the District of South Carolina / 3:21-cv-00148JFA Judge: Judge Joseph F. Anderson Jr.; mediator William B. “Kip” Darwin Jr. Amount: $2 million Date: Oct. 30, 2023 Attorneys: Richard A. Hricik of The Law Offices of Richard A. Hricik, Mount Pleasant, and Amanda C. Duré of Pangia Law Group, Washington D.C. (for the plaintiff) This was a 42 USC 1983 civil rights lawsuit brought against the Columbia Housing Authority on behalf of the family of Calvin J.

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

Witherspoon, Jr. who died from carbon monoxide poisoning Jan. 17, 2019, at the Allen Benedict Court Apartments in Columbia.

The poisoning was caused by a fuel-fired furnace in the Columbia Housing Authority complex. The Columbia fire chief’s investigation noted that there were no carbon monoxide detectors in any unit as was required by the city and state fire codes and that the death was entirely preventable through regular furnace maintenance.

The investigation also revealed more than 869 code violations. The conditions resulted in the fire chief ordering the evacuation of all tenants as the conditions, “constituted a clear and imminent threat to human life, safety, or health.” The housing authority subsequently razed the property.

Plaintiff alleged that the authority acted with “deliberate indifference to the risk of harm” in its maintenance of the complex, including failing to install carbon monoxide alarms as required by law, resulting in Witherspoon’s death.

NOVEMBER 2023

The District Court dismissed the case in August 2021 on grounds that included the authority didn’t have actual knowledge of a prior carbon monoxide leak and found no constitutional rights violation. The 4th Circuit Court of Appeals reinstated the lawsuit on an appeal, stating: “At bottom, the facts alleged in this case shock the conscience: a public housing authority’s deliberate indifference to a risk of harm that threatened numerous families living in low-income housing. What is more, two men died because of that indifference, several more were hospitalized, and an entire community was evacuated. Substantive due process exists as the ‘last line of defense’ against such official abuses of power that are so arbitrary as to shock the conscience of the court.”

After the Appeals Court’s decision, the parties entered settlement negotiations. An agreement was reached that the authority’s insurer would pay the remainder of its policy of $400,000 and the authority would pay $1.6 million. ◆

19

COMMENTARY

Are workplace DEI policies still legal after SCOTUS decisions?

T

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-

20

By Cara Crotty and Robin Shea 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?

Reactions to decisions 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.

Meanwhile, employers began facing 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.

Questionable DEI practices 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 that are not objectively reasonable based on anticipated openings and attrition can pose legal risks.

• Tying compensation or bonuses to attainment of diversity goals.

• Requiring diverse candidate slates.

• Limiting opportunities based on race or gender.

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

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

COMMENTARY

Decision dictates review of policies, practices B y J e ss 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

T

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 THALLERwaste compliance MORAN company with operations in North Carolina and South Carolina, the NLRB toughened standards for evaluating whether an employer’s policies would discourage or “chill” an employee’s ability to BARKER engage in activity protected by Section 7 of the labor act.

The Stericycle decision changes course from prior standards that allowed an employer’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 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. ◆

DEI best practices

• 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 nondiscriminatory selection criteria.

• Including women and minorities as interviewers when feasible and appropriate.

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

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 and reviewing DEI programs and practices.

Cara Crotty is a partner in the Columbia office of Constangy, Brooks, Smith & Prophete.

Robin Shea is a partner in the WinstonSalem, North Carolina, office of Constangy, Brooks. ◆

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.

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

NOVEMBER 2023

21

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 SIMONTACCHI counties, 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 WHITE in northeastern North 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

22

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.

“We’re seeing lawsuits all over the coun-

try 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 to file electronically and save the cost of pa-

NOVEMBER 2023

See Page 24

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

Investors Title Exchange & Accommodation

1031 EXCHANGE EXPERTISE

DEDICATED EXCHANGE TEAM. EXCEPTIONAL SERVICE. Exclusively dedicated to the 1031 exchange business since 1988 – Investors Title Exchange Corporation provides exemplary qualified intermediary and exchange accommodation title holder services. u hundreds of exchanges facilitated every year u administered by a knowledgeable, experienced team of exchange attorneys and exchange specialists u transactional integrity ensured via • safety of funds through Fidelity bonding, strict internal controls, and independent audits • interest-bearing exchange accounts • fast, dependable service and document preparation

ASK OUR CUSTOMERS!

“Rarely in our business is there truly only one choice in a partner/relationship.

”

But when it comes to 1031 exchanges, Investors Title is the ONLY option for us.

CAROL HAYDEN, ESQ., CES® EVP ITEC/ITAC chayden@invtitle.com 919.945.2423

VICTORIA TEMPLETON, ESQ., CES® VP ITEC/ITAC Exchange Counsel vtempleton@invtitle.com 919.945.2400

984.364.2752 | exchanges@invtitle.com F-72 (5/2023) | GENP8520230515

– Daniel S. Kadis, Centrex Properties, Inc.

“

Given the added risk associated with reverse exchanges, we have developed a great comfort level over the years working with the Investors Title team. We couldn’t imagine a better partner.

”

– George T. Barnes, Vanguard Property Group

“Not only is the staff very responsive to my calls and emails, they are also

very knowledgeable. With representation on the Board of Directors for the Federation of Exchange Accommodators, I know that I can rely on the exchange team for up-to-date advice and guidance on the unusual issues that always seem to come up.

”

– Donald VonCannon, Esq., Allman Spry Attorneys at Law

Subsidiary of Investors Title Company (NASDAQ – ticker symbol “ITIC”)

24

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 22

Mecklenburg County rollout

per 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. ◆

24

NOVEMBER 2023

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

25

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 SORGE provide my services to many professionals in our community,” she says.

Q. What attracted you to the paralegal profession?

A. My grandmother was one of my biggest role models. She was an insurance See Page 26

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

www.NCMediators.org www.SCMediators.org Over 20,000 mediations scheduled online by more than 1800 legal staff since 2018 This online calendaring service is entirely free, funded by members of the Academy in North and South Carolina.

To view the National Academy’s free database of over 1000 top litigator-rated mediators & arbitrators, simply visit www.NADN.org/directory

S O U T H C A R O L I N A L A W Y E R S W E E K LY

|

NOVEMBER 2023

25

26

CAROLINA PARALEGAL NEWS

NOVEMBER 2023

Continued From Page 25 defense paralegal. 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 fires that

26

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. 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 kindergarten 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

| S O U T H C A R O L I N A L A W Y E R S W E E K LY

Investors Title Legal Team CAPABLE, COMMITTED, AND INVESTED IN YOUR SUCCESS

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

UNDERWRITING EXPERTISE

INDUSTRY KNOWLEDGE

CONTINUING EDUCATION

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

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

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

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

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

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

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

• Residential & Commercial Title Insurance • Commercial Escrow & Disbursement Services • Trust Account Reconciliation • §1031 Like-Kind Exchanges

800.326.4842 | invtitle.com

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

THE ALL NEW

SOUTH CAROLINA LAWYERS WEEKLY

South Carolina Lawyers Weekly Daily Newsletter Sign up for your daily digest of South Carolina Lawyers Weekly

New Look. New Experience. Same Credible News.

In recognition of the ever-growing importance to deliver news in the most engaging way, we’ve revamped sclawyersweekly.com. You’ll find a more focused approach to today’s top stories and improved navigation, resulting in higher engagement on our site. This revamp also brings new advertising and marketing opportunities that connect businesses to decision-makers in the industry.

More News. More Views. More Exposure.

More Reasons To Get Your Brand’s Message Visible Now.