JOURNAL - IN THIS ISSUE Human Trafficking in North Carolina page 6 Sweeping Changes Proposed to CLE Rules page 10 Adjusting to a Hybrid Work ...
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THE NORTH CAROLINA STATE BAR JOURNAL SUMMER 2022 IN THIS ISSUE Human Trafficking in North Carolina page 6 Sweeping Changes Proposed to CLE Rules page 10 Adjusting to a Hybrid Work Environment page 26
THE NORTH CAROLINA STATE BAR JOURNAL FE AT U R E S Summer 2022 Volume 27, Number 2 6 Human Trafficking in North Carolina, Editor and How the WORTH Court Works to Jennifer R. Duncan Combat It By Jennifer Haigwood, Lindsay Lane, and Bengie Hair © Copyright 2022 by the North Carolina 10 CLE Board Proposes Sweeping State Bar. All rights reserved. Periodicals Changes to CLE Rules postage paid at Raleigh, NC, and additional By Peter Bolac offices. POSTMASTER: Send address changes to the North Carolina State Bar, PO 26 Adjusting to a Hybrid Work Box 25908, Raleigh, NC 27611. The North Environment: Making Sense of the Carolina Bar Journal invites the submission of unsolicited, original articles, essays, and Messy Middle book reviews. Submissions may be made by By Laura Mahr mail or email (jduncan@ ncbar.gov) to the editor. Publishing and editorial decisions are 32 Investing in our Future Leaders—30 based on the Publications Committee’s and Years and Beyond the editor’s judgment of the quality of the By Rebecca J. Britton writing, the timeliness of the article, and the potential interest to the readers of the 37 Personal Jurisdiction Journal. The Journal reserves the right to edit By R. Daniel Gibson all manuscripts. The North Carolina State Bar Journal (ISSN 10928626) is published four times per year in March, June, September, and December under the direc- tion and supervision of the council of the North Carolina State Bar, PO Box 25908, Raleigh, NC 27611. Member rate of $6.00 per year is included in dues. Nonmember rates $10.73 per year. Single copies $5.36. The Lawyer’s Handbook $16.09. Advertising rates available upon request. Direct inquiries to Director of Communications, the North Carolina State Bar, PO Box 25908, Raleigh, North Carolina 27611, tel. (919) 828-4620. ncbar.gov Follow us at: Twitter: @NCStateBar Facebook: facebook.com/NCStateBar Publication of an article in the Journal is not an endorsement by the North Carolina State Bar of the views expressed therein. T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 3
D E PA RT M E N TS 45 Legal Ethics 56 Distinguished Service Awards 5 President’s Message 47 Rule Amendments 56 Council Adopts DEI Statement 39 The Disciplinary Department 50 Proposed Ethics Opinions 57 July Bar Exam Applicants 41 Upcoming Appointments 62 In Memoriam 42 Legal Specialization B A R U P D AT E S 44 Lawyer Assistance Program 55 Law School Briefs Officers Meredith Nicholson, Durham Forest City Darrin D. Jordan, Salisbury 17: Charles E. Davis, Mebane 42: Michael A. Lovejoy, President 2021-2022 18: Charles Gordon Brown, Chapel Hill Hendersonville Marcia Armstrong, Smithfield 20: Joshua Dale Malcolm, Pembroke 43: Zeyland G. McKinney, Murphy President-Elect 2021-2022 21: F. Davis Poisson III, Wadesboro A. Todd Brown, Charlotte 22: Matthew W. Smith, Eden Public Members Vice-President 2021-2022 23: Thomas B. Langan, Pilot Patricia Head, Littleton Barbara R. Christy, Greensboro Mountain Dr. Joseph E. Johnson, Greensboro Past-President 2021-2022 24: Patrice A. Hinnant, Greensboro Mohan Venkataraman, Morrisville Alice Neece Mine, Chapel Hill Manisha P. Patel, Greensboro Secretary-Treasurer 24H: Kathleen E. Nix, High Point Executive Director 25: Jay White, Concord Alice Neece Mine Councilors 26: David N. Allen, Charlotte By Judicial District Robert C. Bowers, Charlotte Assistant Executive Director 1: C. Everett Thompson II, Elizabeth George V. Laughrun II, Charlotte Peter Bolac City Dewitt McCarley, Charlotte 2: Tom D. Anglim, Washington Gena Graham Morris, Charlotte Counsel 3: Robert C. Kemp III, Greenville Eben T. Rawls, Charlotte Katherine Jean 4: Scott C. Hart, New Bern Timika Shafeek-Horton 5: Kevin Joseph Kiernan, Clinton 27: T. Gregory Jones, Salisbury Editor 6: W. Allen Cobb Jr., Wilmington 28: John Webster, Albemarle Jennifer R. Duncan 7: Takiya Fae Lewis, Ahoskie 29: Richard Costanza, Southern Pines 8: Michael B. Peters, Tarboro William C. Fields Jr., Raeford Publications Editorial Board 9: Jonathan Mark Herring, Kinston 30: H. Ligon Bundy, Monroe Andrea N. Capua, Chair 10: Julie L. Bell, Raleigh 31: George M. Cleland IV, Winston- W. Allen Cobb, Jr., Vice-Chair Heidi C. Bloom, Raleigh Salem Heidi C. Bloom Walter E. Brock Jr., Raleigh Kevin G. Williams, Winston- Richard J. Constanza Ashley H. Campbell, Raleigh Salem Margaret Dickson (Advisory Member) Katherine Ann Frye, Raleigh 32: Daryl G. Davidson, Taylorsville Patricia Head (Public Member) Kimberly A. Moore, Raleigh 33: Roy Lawrence McDonald II, Mark P. Henriques (Advisory Member) Robert Rader, Raleigh Lexington Robert C. Kemp III Warren Savage, Raleigh 34: John S. Willardson, Wilkesboro Tom B. Langan 11: James Thomas Burnette, Oxford 35: Andrea N. Capua, Boone Takiya Fee Lewis 12: Eddie S. Winstead III, Sanford 36: M. Alan LeCroy, Morganton Kathleen E. Nix 13: Dionne Loy Fortner, Smithfield 37: Clark R. Bell, Asheboro Timika Shareff-Horton 14: Harold Lee Boughman Jr., 38: Michael Randalph Neece, Gastonia Camille Stell (Advisory Member) Fayetteville 39: Rebecca J. Pomeroy, Lincolnton Darci White (Advisory Member) 15: Michael R. Ramos, Shallotte 40: Anna Hamrick, Asheville G. Gray Wilson (Advisory Member) 16: Dorothy Hairston Mitchell, Durham 41: Merrimon Burwell Oxley, 4 SUMMER 2022
T H E PRES I DE NT’S M ES SA GE Takeaways from the April 2022 Quarterly Meeting B Y DARRI N D. JO R D AN 50 Year Lawyers Luncheon to Raleigh in jeopardy; in reality he may not will soon be on my schedule), but I’ve also For longer than I have been a member of live to see October. attended gatherings of large groups both the North Carolina State Bar Council, the The presentation was not a solemn occa- indoors and outdoors, with and without a State Bar has recognized attorneys who have sion in light of the circumstances, but was a mask. When the officers and the executive been licensed for 50 years at a luncheon during celebration that included his wife, his son, his staff of the State Bar decided to convert the the annual meeting held each grandson, his former law January Quarterly Meeting to virtual events, October. This has been de- partner, other individuals well, let’s just say that really took me to a new scribed by past and present of- from the local courthouse, all-time low. But the planning and scheduling ficers and councilors as one of and his paralegal and friend of an in-person meeting during the April the highlights of their service of over 31 years, who had Quarterly Meeting reenergized me, and I was to the State Bar Council. I written a poem about the really excited to be in the presence of friends have always enjoyed attending service this gentleman had and colleagues I hadn’t seen since October. these luncheons during my provided to his community The April Quarterly Meeting was every- time on the council, and I can’t and to his clients. It was truly thing I had hoped for and more. The progress remember a time when I’ve incredible to have the oppor- made by the council is a testament to how missed this event. I not only tunity to be a part of this much good work can be accomplished when consider it a wonderful oppor- presentation. you are in the same room with other deci- tunity to meet individuals I’ve The recognition of an sionmakers; virtual meetings are convenient, never met, but it is also a great individual who has been but not as effective. If you disagree, let’s just time to hear “war stories” from long and inter- licensed to practice law for 50 years is an say we will have to agree to disagree and still esting careers, many of which provide insight important event for the North Carolina State be friends. into how practicing law has evolved. Bar Council and, as I experienced in going to Shortly after the April Quarterly meeting, These luncheons have always been mean- this rural county, it is extremely meaningful I decided that it would be a good idea to do ingful to me and to the honorees. Over the to the individuals being honored. an at-home COVID test. There are many fac- last two years, the health crisis that gripped I would recommend reading the “life in tors that led me to that decision which I will our world put these celebrations on hold, and the law” essays of the Class of 1971, which not go into, but I was not surprised when the we searched for an opportunity to recognize can be found on the State Bar’s website at at-home test was positive, and a subsequent these lawyers at an “in person” event. After bit.ly/2022-50Year. There are funny stories, PCR test was also positive. There is no way of two postponements, we were finally able to stories that provide historical context, and knowing where or when I was infected. Some schedule the luncheon celebrating the 1971 one of my favorites, Michael Crowell’s 19 believe that I was infected during the week of 50 year lawyer class for the April 2022 “lessons from 50 years of practicing law.” the quarterly meeting, and some might believe Quarterly Meeting. The importance and Finally, I would encourage you to look at the my infection was the result of my “irresponsi- meaningfulness of this luncheon to the hon- list of the Class of 1971 and reach out to ble behavior” (see the comments in my open- orees became even more clear to me as we them with a call or a card congratulating ing paragraph). To me, it really doesn’t matter approached the April meeting. them on this accomplishment. In October of where it came from and how I got it. A week before that meeting, I was asked to this year, we will hopefully be back on sched- For some time now I have believed that at travel to one of our rural counties to present ule as we honor the Class of 1972. some point two things will become realities a certificate of appreciation to a North when it comes to COVID. First, we all will Carolina attorney who will have been a COVID Revisits be infected (or already have been and don’t licensed North Carolina lawyer for 50 years I have always described myself as a “glass know it). Second, it is time to “leave the cave” this coming fall. As I mentioned, these pre- half full” kind of person and, I sincerely hope and get back to living as we did pre-pandem- sentations usually take place at our October that I’ve made that apparent in how I have ic. My recent experience with COVID has Annual Meeting, but this distinguished gen- lived my life and how I approach each day. not changed my mind as to the latter, but that tleman has been diagnosed with cancer and is During the pandemic, I have been cautious is because my symptoms were very mild, and currently in decline in a way that puts the but not overly cautious. I’ve been vaccinated chances that he will be well enough to come and taken the booster (the second booster CONTINUED ON PAGE 24 T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 5
Human Trafficking in North Carolina, and How the WORTH Court Works to Combat It BY J E N N I F E R H AI G WOOD , LI N DS AY L ANE , A ND B ENGIE HA IR I n January 2022, Jennifer Haigwood, chair of the North Carolina Human Trafficking mmg1design/istockphoto.com Commission, served as guest host on All Things Judicial, a podcast from the North Carolina Judicial Branch. Every year, January is recognized as Human Trafficking Awareness month. The January episode highlighted the We Overcome Recidivism through Healing (WORTH) Court, which is a human traf- ficking diversion court in Cumberland County. Lindsey Lane, former assistant district attorney in Cumberland County, and Bengie Hair, coor- dinator for the Cumberland County WORTH Court Program served as podcast guests. Until recently, Ms. Lane was the main senior legal counsel for the Human January podcast. prosecutor for human trafficking cases in Trafficking Institute. Mr. Hair is the coordi- Cumberland County. She also served as pros- nator of the WORTH Court, which is North What is human trafficking? ecutor in the WORTH Court and, along Carolina’s first human trafficking diversion Ms. Lane: The legal definition in North with Cumberland County District Court court, organized in 2019. He organizes the Carolina for human trafficking is when a per- Judge Toni King, was instrumental in the court’s advisory council activities run by son knowingly or in reckless disregard of the program’s initial establishment. Lindsey is organizations that help both clients and staff. consequences of the action, recruits, entices, now located in Alabama and works as the Following is an edited transcription of the harbors, transports, provides, or obtains by 6 SUMMER 2022
any means another person with intent that nationwide year after year, including in NC. nal charges because of the trafficker. They’d that person be held in involuntary servitude This seems to be the one that’s most com- take the fall for things like drug charges, or or sexual servitude. This is done by force, monly thought of when you hear the term theft charges, and they’d take the brunt of fraud, or coercion. Practically speaking, it’s “human trafficking.” Cases involve exploit- these charges to protect the trafficker. What when someone profits from exploiting anoth- ing people for money, and it’s usually from a Mr. West and I were seeing in the District er person. That can be through commercial very vulnerable population. Traffickers rec- Attorney’s Office in Cumberland County sex, such as prostitution, or forced labor. ognize vulnerability in victims. We see this were multiple defendants who were charged with young victims, such as runaway chil- and had a known history of being engaged in This is a complex crime and includes dren or children in the foster care system. the prostitution lifestyle. We would see they many situations. During your time They have no family support. Traffickers were picking up various misdemeanor prosecuting these cases, can you recruit them, groom them, and manipulate charges—drug charges, theft charges—but describe different scenarios you saw? them into either forced labor or, especially, they weren’t specifically charged with human Ms. Lane: There are a lot of different sex trafficking. This is also true for those who trafficking because they were the victims in types. NC divides trafficking into two cate- suffer from substance abuse problems. We these cases. It didn’t trigger our state’s safe har- gories: labor trafficking, which is involuntary see that a lot. They’re so desperate and bound bor law to try to provide them with relief for servitude; and commercial sex trafficking, by their addiction. They find themselves in that charge, but there was definitely a need to which we call sexual servitude. Labor traffick- over their heads with drug debt to their traf- get them out of that trafficking lifestyle and ing includes someone who is forced to ficker, and they get forced into that lifestyle. back into society. work—often without pay—and the employ- It was our general policy that we would er is physically forcing them to work or coerc- I’ve learned during my time on the com- not charge victims, especially in cases where ing them by some means, or they’re engaged mission that people often don’t know they we saw it could be dangerous to them. For in some kind of fraud. Sometimes in NC, in are victims or don’t identify as such. The example, if the trafficker finds out that their an area such as agriculture or domestic work, commission encourages best practice victim has been charged and thinks they it involves someone who comes from a very models when addressing this issue, and might be cooperating with law enforcement, vulnerable population. Maybe they have a one best practice is not arresting victims. that could put the victim at risk for harm. vulnerable legal status, specifically immi- It seems evident that potential victims or Also, if the trafficker bonded them out of jail, grants. And it might be that their visas are people at high risk are encountering the what we were seeing is the victim racking up being held by the employer to exploit them court system. Is this what led to or is a a debt to their trafficker, who would force for free labor. But it can also include child reason for a diversion court? them to pay off that debt by making them labor, where children are being worked ille- Ms. Lane: Shockingly, in my experience work in the sex trafficking industry. And gally and not being paid. And NC also has dealing with victims and working with them that’s when Cumberland County said, “Hey, what’s more commonly known—the com- over the past several years, that’s absolutely let’s create a WORTH diversion court,” and mercial sex trafficking industry. That’s where correct. Most victims did not know they try to help victims and persons who might be traffickers are using force, fraud, or coercion were being trafficked at the time it was tak- vulnerable to traffickers. to cause another person to work in commer- ing place and said, “I just didn’t know. I cial sex. This is what’s most well known and couldn’t see what was going on.” It wasn’t We are going to hear more detail about the most often prosecuted. We see this primarily until they were removed from that situation court next, but from your experience, do online, where there are hundreds of websites that they realized they were being exploited you believe this model is worthy of repli- that traffickers use to advertise their victims by the trafficker. They either thought they cation in other North Carolina counties? and solicit buyers. And of course, the traffick- were in a romantic relationship with the Ms. Lane: Absolutely. The WORTH er takes the money that’s received from those trafficker, or they were so dependent on Court is such an amazing tool in cases that commercial sex acts. drugs they were blind to the fact they were would ordinarily go undetected or slip We also see a hybrid type of trafficking being exploited. They still have loyalty to through the cracks. It’s had a two-fold effect. that you might have heard of on the news their trafficker, and this is a complex sce- One, we’re serving the victim and preventing, involving massage parlors. That’s when vic- nario of trauma bonding that’s unique to hopefully, potential victims from being pulled tims are engaging in forced labor, but they human trafficking. Victims can’t just walk into a trafficking ring by meeting them where are also engaging in the commercial sex away. The hold that the trafficker has on they are and giving them an avenue to get out industry. Maybe they’re working without them is very strong—sometimes it’s physical of that life. We will offer them services and, if pay, or maybe their visas are being held by abuse, sometimes it’s the drug abuse, or they’re interested, they can help themselves their trafficker. But they’re also providing sometimes it’s extortion, where the trafficker break free from that cycle, and if they’re not, sexual services. threatens to have the victim deported if they that’s OK, too. What we are also seeing is that At the Human Trafficking Institute, we are in illegal status. Or sometimes it would when we build up and create a healthy victim, produce an annual report that collects the just be familial shame—the trafficker threat- we are also improving our success rate in data on all federal human trafficking cases ens to tell their family they have engaged in prosecution. It makes sense that a healthy vic- that are filed in the United States. By far, things like commercial sex. tim is going to be in a much better position commercial sex trafficking involving prosti- What would often happen in these types to testify at trial and confront his or her traf- tution is the most commonly charged of situations is the victim would incur crimi- ficker. So, by serving the victim, we are actu- T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 7
ally seeing more success busting the trafficker Benjie, what is the WORTH Court, and of any case management service. There is an and saving exponential lives by doing so. can you explain its description and assessment done after an intake that helps purpose? determine an individual’s immediate pending As you know, many people feel human Mr. Hair: WORTH Court is a diversion needs, what the long-term needs throughout trafficking is a “big city” crime. If another court set up to manage human trafficking the 12-to-18-month WORTH court process county is interested in such a program, survivor cases by providing supportive care might be, and what their needs following how many referrals justify starting this and intervention services. We’re a little over their participation might be. The services initiative? two years old, and have had 35 referrals, with determined by the assessment to be neces- Ms. Lane: Anyone who has worked in this 15 dismissals out of those referrals. We’ve had sary—such as housing, transportation, med- industry knows that human trafficking hap- ten graduates and currently have ten active ical services, substance abuse supportive care pens everywhere. It has no respect for big participants. We’re based in Cumberland services, and mental health services—are set cities or small towns. It happens in all com- County, and we’re a little bit different from up by the case management entity. We have munities. We know from the cases that have other diversion courts, such as drug courts obtained these services by establishing mem- been charged in Cumberland County that and veterans’ courts, in that we don’t meet as orandums of agreement with local communi- victims are often transported from place to frequently as other courts do, and we have ty providers, identified through our council place, and depending on where the demand outside resources within the community that members who have relationships with the is, the trafficker will take the victim wherever provide a lot of the supportive services for our providers. That’s one of the values of setting he can make the most money. A diversion participants. up the council in the beginning—we became court is beneficial in any jurisdiction. I prom- connected to the community and to people ise that human trafficking is going on even if Who does the court see and how do they willing to work with us, whether we had a it is not immediately recognizable. It is espe- get there? dollar to pay them or not. These people were cially important in our more metropolitan Mr. Hair: Referrals for the WORTH willing to support the WORTH Court and areas, where you see the most charges for Court typically come from the district attor- what it stands for. human trafficking. It makes sense that in ney’s office and the public defender’s office. those places we will find more victims that We do get some referrals from private attor- Diversion programs have long been used could utilize these services. neys. It’s basically a system whereby individu- as alternatives to incarceration. Is there als who appear in court—either superior anything different about this program as Lastly, what stakeholders are necessary court or district court—are identified as hav- compared to other diversion court to support the program? ing been a victim of human trafficking, and models? Ms. Lane: No one person can do this have charges against them for an offense of Mr. Hair: Other diversion courts have alone. You can ask Judge King from some nature. It’s recognized that they could more frequent interaction with the individ- Cumberland County, or Billy West, who is benefit from supportive care activity, and that ual in the court setting, and one of the the elected district attorney of Cumberland they, as a victim, have not perpetuated a things we find with human trafficking sur- County, or even our public defenders. They crime, but have been charged with a crime, vivors is that they don’t need to be retrauma- will tell you that it takes a village to develop and they’re in court and are seeking some type tized. They’ve been through a lot of trauma a court like this, and more importantly to of relief. Having been charged as a defendant, and sometimes it’s been for a lengthy period make it successful. Watching the changes they are eligible to come to one of the diver- of time. So, what we did in the beginning— that we have affected in the lives of the par- sion courts. They can be referred to us and we and this is due to the insight of Judge ticipants that have already been through the can provide them with the services of King—is we had them come into court only program, it’s absolutely worth it. Now, per- WORTH Court. If the participant agrees to every two months. In the interim period sonally, as a prosecutor, it took our office, come to WORTH Court, and the district they are working with their case manage- through Mr. West, recognizing that a vic- attorney’s office agrees that the individual’s ment provider, and we get weekly updates tim-centered approach is important. It’s nec- charges will be held back until they have on their progress and their attendance to essary not just for the well-being of that vic- completed WORTH Court, then those case management and group sessions. Every tim, but for the successful prosecution of the charges will be dismissed. The individual will month we get a cumulative report on their trafficker. participate in WORTH Court for a period of total activity. We’re able to keep in touch 12 to 18 months. with what’s going on with them, but we, as Thank you so much for taking time with a different type of court, are not having us today. Any closing thoughts? What types of services are most com- them appear in court and profess to their Ms. Lane: If anyone is interested in start- monly needed for participants or what progress. By doing so, we hope to reduce ing a diversion court program in your com- can be offered? stress. A lot of times appearing in court itself munity, please reach out to the commission Mr. Hair: All participants are involved in is traumatic to an individual. We’re trying to or to the WORTH Court directly. It’s such an case management services. These are services help them make the transition from being in invaluable resource, and each city should real- we have designed specifically for human traf- a stressful environment to one that’s a little ly be looking into how they’re combatting ficking survivors. The case management is more relaxed, while showing them care so human trafficking. Be mindful that you’re tailored so that the individual can comply they can overcome some of what they have working from a victim-centered approach. with the care plan, which is a core component endured. 8 SUMMER 2022
The commission is so glad to have this are you going to look at the development of sive and it’s not something that makes people program in the state. If others want to ex- the court as it’s growing, as it’s going about its feel uncomfortable. Each day, WORTH plore this option in their county, are there business? The concept of “build it and they Court has done good work in our commu- a few key points of major significance shall come” sometimes happens. Right away nity. And we see in every one of the individ- they should know? we had a lot of referrals, and we had to figure uals with whom we’ve worked the daily strug- Mr. Hair: The program was conceptualized out how we were going to manage everything. gle to overcome. and put into practice in early 2019. We became The fourth area is collecting data. I started One of the things I can say about the ten active in the fall of 2019, so we have been right away setting up my own system for col- individuals who have graduated—to date, none providing direct services for about two years. lecting data and reporting out that data, so we of them has relapsed. That’s one of the things During that time, we have been tracking the had something to show for what we were do- I’m most proud of with this program. One of successes and challenges of putting this type ing. A little over a year into the process, I real- the points I will make about our case manage- of court in place. We’re a little bit different, ized there were some key data elements I was ment efforts and this term “WORTH,” is that and with that we’ve had to adjust the court not collecting that needed to be reported— when an individual completes the program system to our needs. We’ve all had to do a data that would help us understand a little and graduates, the services and the supportive little give and take. In doing so, we have noted more about the work we’re doing, and tell oth- care services are still there for them. Those serv- what we feel are the best practices. Through ers about it. We have best practices we can ices will remain for as long necessary to con- that process, I came up with an outline of best share with any other judicial district in this tinue growing and healing. practices with 12 categories of how to put this state looking at implementing a similar type type of court together, taking into account the of court, and we are willing to share it. Thank you so much for taking time with administrative components, the judicial com- us today. Any closing thoughts? ponents, and the sustainability of this type of WORTH stands for We Overcome Recidi- Mr. Hair: This has been a great opportu- program. We also considered the strategic plan- vism Through Healing. Why did the plan- nity to review our practices, and sometimes ning piece, taking into account what services ning group choose to use this name? we take our best practices and make them we needed to have in place, and our desire to Mr. Hair: Judge King came up with the better. We are willing to share with other ju- reduce the trauma of those services. name. It reflects the “WE,” meaning that dicial districts what our experience has been, Out of the 12 categories, we came up with we’re a team, and we like to think of our- and we’re willing to mentor folks who wish four key areas that we determined any kind of selves as a team. We constantly strive to to entertain the idea and implement a court would need to consider when starting a overcome recidivism, which is so much a WORTH Court program. n new WORTH-type court. One of those is part of the lives of the people with whom we how to integrate that court into the existing work. We do this through healing, and that Human trafficking is a crime that involves court system, with as little stress as possible. healing is a constant effort, and it happens all disciplines, communities, and systems. The The next one would be the administrative through many different methods. It may courts play a major role in identifying and ad- oversight. How are you going to address the mean physical healing, it may mean mental dressing human trafficking. If you believe you administrative function? Such as, if you are healing, it may be that the victim has to are a victim or know a victim, there is help awarded money, how do you receive that define how they see themselves and com- available. Call the National Human Trafficking money and where are those funds going to be pletely reinvent that definition. Hotline at 1-888-373-7888 or text BeFree. For placed? More than likely, this court will not WORTH also, as a term, signifies that more information about the WORTH Court or be a 501(c) nonprofit. Someone has to manage the person has recognized their value. This is other human trafficking programs, please visit the funds. The third area is operations and a very appropriate term for individuals who the NC Human Trafficking Commission’s web- programmatic development. How are you go- are survivors, and it is a term that has proven site, nccourts.gov/ commissions/human-traffick- ing to account for your operations, and how to be very appealing to others. It’s not offen- ing-commission, or call (919) 890-1424. T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 9
CLE Board Proposes Sweeping Changes to CLE Rules B Y PE T E R B O L AC O n March 12, 2022, the North Carolina State Bar’s Board of Continuing Legal Education (CLE Board) approved large-scale amendments to its rules following a multi- year review process. The CLE Board believes that these scibak/istockphoto.com proposed changes will have the combined effect of providing more flexibility for lawyers, while also improving efficiency for the CLE program. This executive summary details the key hours), have become both inefficient and publication. The CLE Board and the council changes. The full text of proposed rule unnecessary. are very interested in receiving comments changes follows this summary. Lawyers are Beginning in 2020, the Board of from both lawyers and sponsors. In addition encouraged to read both the summary and Continuing Legal Education undertook an to publication in this edition of the Journal, the full-text version of the proposed all-encompassing review of its rules to create we intend to hold multiple question and amendments. a more efficient and flexible CLE program. answer sessions for lawyers, and we are avail- The rules of the Continuing Legal The review included meetings with State Bar able to meet with bar groups and other pro- Education program were originally adopted CLE directors in other states, where board fessional associations over the next quarter. by Order of the Supreme Court in 1987. members were able to ask questions and learn The CLE Board, along with the council, will While various minor changes have been what works best around the country. The review any comments received. Following the made in the 35 years since adoption, the gen- review process was conducted transparently comment period, which ends July 1, if no eral structure of the CLE program remains (meetings are available on the State Bar’s substantive changes are needed, the rules will unchanged since its inception. Requirements YouTube page), and the board received regu- come back before the State Bar Council for that once made practical sense (e.g., the lar feedback from CLE providers, including adoption. The adopted rules will then be sent Annual Report Form requirement), and the North Carolina Bar Association. to the Supreme Court for its review and administrative tasks that were easier to The proposed rule changes were presented approval. It is the board’s desire that these accomplish when there were fewer licensed to the North Carolina State Bar Council in new rules will be effective beginning with the lawyers (e.g., collecting fees based on credit April and were subsequently approved for 2023 CLE year. 10 SUMMER 2022
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Additional Information clusion, bias, or equal access to justice.” The uing Legal Education Program • As part of the 36-hour requirement over program is not mandatory. Lawyers can choose three years, lawyers must complete at least: to take social responsibility programs as part .1501 Scope, Purpose, and Definitions o 6 ethics hours (professional responsibility, of their 6-hour ethics requirement. (a) Scope. professionalism, or social responsibility); • Exemptions will be claimed during the Except as provided herein, these rules shall o 1 professional well-being and impairment annual membership dues renewal process and apply to every active member licensed by the (PWI) hour; and will be effective for one year. Exempt lawyers North Carolina State Bar. o 1 technology training hour. will not be assessed an annual attendance fee. (b) Purpose. • The CLE Board intends to create stag- • To encourage and recognize service to the The purpose of these continuing legal gered reporting periods so that roughly one- profession, the CLE Board recommends that education rules is to assist lawyers licensed to third of lawyers are reporting each year. This State Bar councilors be exempt from CLE re- practice and practicing law in North Carolina will require a one-time modification to the quirements in the same manner as members in achieving and maintaining professional rules where one-third of lawyers have a one- of the Board of Law Examiners. competence for the benefit of the public year/12-hour requirement and one-third have • There will be increased penalties for late whom they serve. The North Carolina State a two-year/24-hour requirement before starting compliance, and a faster process for adminis- Bar, under Chapter 84 of the General the three-year reporting period. trative suspensions due to non-compliance. Statutes of North Carolina, is charged with • Program application fees will be based Notices to Show Cause and Orders of Sus- the responsibility of providing rules of profes- on the number of credit hours sought for ap- pension will operate in tandem without the sional conduct and with disciplining lawyers proval and will be due upon submission of need for additional council action. attorneys who do not comply with such rules. the program application. • The designation of “registered sponsor” The Revised Rules of Professional Conduct • Courses offered for free will have a re- is eliminated. adopted by the North Carolina State Bar and duced application fee and will be searchable • Sponsors failing to timely submit atten- approved by the Supreme Court of North in the CLE Course Directory. dance reports will be charged a late reporting Carolina require that lawyers adhere to • On-demand programs will be approved fee and also prohibited from having new important ethical standards, including that of for three years and thereafter may be renewed courses approved for credit until the report is rendering competent legal services in the rep- annually as long as the program continues to filed. resentation of their clients. meet accreditation standards. • The CLE Board intends to maintain its At a time when all aspects of life and soci- • Eliminating carry-over credit may frus- historical funding in support of the Chief Jus- ety are changing rapidly or becoming subject trate lawyers who like to stay ahead on their tice’s Commission on Professionalism (CJCP) to pressures brought about by change, laws requirements. The reasons for eliminating and the Equal Access to Justice Commission and legal principles are also in transition carry-over credit include: (EAJC). (through additions to the body of law, modi- o A three-year reporting period provides • Specialists should note that these changes fications, and amendments) and are increas- the flexibility and additional time that do NOT impact the CLE requirements for ing in complexity. One cannot render compe- carry-over credit now provides. obtaining and maintaining specialty certifica- tent legal services without continuous educa- o If carry-over credit was permitted (36- tion through the Board of Legal Specialization. tion and training. hours, for example) then lawyers could the- Existing specialists and lawyers intending to The same changes and complexities, as oretically take 72 hours in year one of their apply for specialty certification in their practice well as the economic orientation of society, reporting period and not have to complete area should consult the administrative rules result in confusion about the ethical require- another CLE program for eight or nine governing their specific specialty for a full list ments concerning the practice of law and the years. This is not a good way to ensure of CLE requirements associated with specialty relationships it creates. The data accumulated continued competency in the profession. certification (including annual, cumulative, in the discipline program of the North o The elimination of carry-over credit im- and content requirements). Carolina State Bar argue persuasively for the proves administrative efficiency, and the establishment of a formal program for con- board believes it is an acceptable tradeoff Contact Us tinuing and intensive training in professional for the additional flexibility provided to Please contact Peter Bolac, assistant execu- responsibility and legal ethics. lawyers in these changes. tive director of the North Carolina State Bar It has also become clear that in order to • The additional credit for teaching CLE and director of the Board of Continuing render legal services in a professionally courses (6 hours for every hour taught) remains Legal Education, at Pbolac@ncbar.gov with responsible manner, a lawyer must be able to the same. your questions and comments. Comments manage his or her law practice competently. • The substance abuse and mental health may also be sent to ethicscomments@ Sound management practices enable lawyers program definition is modernized and is now ncbar.gov. to concentrate on their clients’ affairs while called professional well-being and impairment avoiding the ethical problems which can be (PWI). Proposed Amendments to Rules of caused by disorganization. • A new type of ethics program called “so- the Standing Committee of the North It is in response to such considerations cial responsibility” is created and is defined as Carolina State Bar that the North Carolina State Bar has adopt- “a program, directly related to the practice of 27 N.C.A.C. 1D, Section .1500, Rules ed these minimum continuing legal educa- law, devoted to education about diversity, in- Governing the Administration of the Contin- tion requirements. The purpose of these min- 12 SUMMER 2022
imum continuing legal education require- the education of their employees or of clients, civility, improvement of the jus- ments is the same as the purpose of the members; tice system, diversity of the legal profession Revised Rules of Professional Conduct them- (B) to be concerned with areas of legal and clients, advancement of the rule of law, selves—to ensure that the public at large is education not generally offered by spon- service to the community, and service to served by lawyers who are competent and sors of programs attended by lawyers en- the disadvantaged and those unable to pay maintain high ethical standards. gaged in the private practice of law. for legal services. (c) Definitions. (1011) A “newly admitted active member” (16) “Registered sponsor” shall mean an (1) “Active member” shall include any per- is one who becomes an active member of organization that is registered by the board son who is licensed to practice law in the the North Carolina State Bar for the first after demonstrating compliance with the state of North Carolina and who is an time., has been reinstated, or has changed accreditation standards for continuing legal active member of the North Carolina from inactive to active status. education programs as well as the require- State Bar. (1112) “On demand” program shall mean ments for reporting attendance and remit- (2) “Administrative Committee” shall an accredited educational program accessed ting sponsor fees for continuing legal edu- mean the Administrative Committee of via the internet that is available at any time cation programs. the North Carolina State Bar. on a provider’s website and does not include (1716) “Rules” shall mean the provisions (3) “Approved program” shall mean a spe- live programming. of the continuing legal education rules cific, individual educational program (1213) “Online” program shall mean an established by the Supreme Court of approved as a continuing legal education accredited educational program accessed North Carolina. (Section .1500 of this program under these rules by the Board of through a computer or telecommunica- subchapter). Continuing Legal Education. tions system such as the internet and can (1817) “Sponsor” is any person or entity (4) “Board” means the Board of include simultaneously broadcast and on presenting or offering to present one or Continuing Legal Education created by demand programming. more continuing legal education programs., these rules. (13) “Participatory CLE” shall mean pro- whether or not an accredited sponsor. (5) “Continuing legal education” or grams or segments of programs that en- (18) “Professional well-being and impair- “CLE” is any legal, judicial or other edu- courage the participation of attendees in ment” (PWI) is a program focused on the cational program accredited by the the educational experience through, for ex- relationship between stressors inherent in bBoard. Generally, CLE will include edu- ample, the analysis of hypothetical situa- the profession, impairment, competence, cational programs designed principally to tions, role playing, mock trials, roundtable and professionalism. Topics may include maintain or advance the professional com- discussions, or debates. the prevention, detection, treatment, and petence of lawyers and/or to expand an (14) “Professional responsibility” shall mean etiology of a range of substance use and appreciation and understanding of the those programs or segments of programs mental health conditions, as well as re- professional responsibilities of lawyers. devoted to (ai) the substance, underlying sources available for assistance and strategies (6) “Council” shall mean the North rationale, and practical application of the for improving resilience and well-being. Carolina State Bar Council. Rules of Professional Conduct; (bii) the Experiential exercises, practices, or demon- (7) “Credit hour” means an increment of professional obligations of the lawyer to strations of tools for improving resilience time of 60 minutes which may be divided the client, the court, the public, and other and well-being are permitted provided they into segments of 30 minutes or 15 min- lawyers; or (ciii) moral philosophy and eth- do not exceed a combined total of 20 min- utes, but no smaller. ical decision-making in the context of the utes in any 60-minute presentation. (8) “Ethics” shall mean programs or seg- practice of law.; and d) the effects of stress, (19) “Technology training” shall mean a ments of programs devoted to (i) profes- substance abuse and chemical dependency, program, or a segment of a program, de- sional responsibility, (ii) professionalism, or debilitating mental conditions on a voted to education on information tech- or (iii) social responsibility as defined in lawyer’s professional responsibilities and the nology (IT) or cybersecurity (see N.C. Gen. Rules .1501(c)(14), (15), and (20) below. prevention, detection, treatment, and eti- Stat. § 143B-1320(a)(11), or successor (89) “Inactive member” shall mean a ology of stress, substance abuse, chemical statutory provision, for a definition of “in- member of the North Carolina State Bar dependency, and debilitating mental con- formation technology”), including educa- who is on inactive status. ditions. This definition shall be interpreted tion on an information technology prod- (910) “In-house continuing legal educa- consistent with the provisions of Rule uct, device, platform, application, or other tion” shall mean courses or programs .1501(c)(4) or (6) above. tool, process, or methodology. that is spe- offered or conducted by law firms, either (15) “Professionalism” programs are pro- cific or uniquely suited to the practice of individually or in connection with other grams or segments of programs devoted to law. A technology training program must law firms, corporate legal departments, or the identification and examination of, and have the primary objective of enhancing a similar entities primarily for the education the encouragement of adherence to, non- lawyer’s proficiency as a lawyer. To be eli- of their members. The board may exempt mandatory aspirational standards of pro- gible for CLE accreditation as a technology from this definition those programs which fessional conduct which transcend the re- training program, the program must satisfy it finds quirements of the Rules of Professional the accreditation standards in Rule .1519 (A) to be conducted by public or quasi- Conduct. Such programs address principles and the course content requirements in public organizations or associations for of competence and dedication to the service Rule .1602(e) of this subchapter. T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 13
(20) “Year” shall mean calendar year. lowing the date on which the appointment is (1) Annual CLE Attendance Fee – All (20) “Social responsibility” programs shall made by the cCouncil. See, however, Rule members, except those who are exempt mean programs, directly related to the practice .1508 of this Section. from these requirements under Rule .1517, of law, devoted to education about diversity, shall pay an annual CLE fee in an amount inclusion, bias, or equal access to justice. .1508 Staggered Terms set by the Board and approved by the It is intended that mMembers of the Council. Such fee shall accompany the .1502 Jurisdiction: Authority bBoard shall be elected to staggered terms such member’s annual membership fee. Annual The Council of the North Carolina State that three members are appointed in each year. CLE fees are non-refundable. Registered Bar hereby establishes the Board of Continuing Of the initial board, three members shall be sponsors located in North Carolina (for Legal Education (bBoard) as a standing com- elected to terms of one year, three members programs offered in or outside North Car- mittee of the cCouncil, which bBoard shall shall be elected to terms of two years, and olina), registered sponsors not located in have authority to establish regulations govern- three members shall be elected to terms of North Carolina (for programs offered in ing a continuing legal education program and three years. Thereafter, three members shall North Carolina), and all other sponsors lo- a law practice assistance program for attorneys be elected each year. cated in or outside of North Carolina (for lawyers licensed to practice law in this state. programs offered in North Carolina) shall, .1509 Succession as a condition of conducting an approved .1503 Operational Responsibility Each member of the bBoard shall be enti- program, agree to remit a list of North Car- The responsibility for operating the con- tled to serve for one full three-year term and olina attendees and to pay a fee for each tinuing legal education program and the law to succeed himself or herself for one additional active member of the North Carolina State practice assistance program shall rest with the three-year term. Thereafter, no person may be Bar who attends the program for CLE bBoard, subject to the statutes governing the reappointed without having been off the credit. The sponsor’s fee shall be based on practice of law, the authority of the cCouncil, bBoard for at least three years. each credit hour of attendance, with a pro- and the rules of governance of the bBoard. portional fee for portions of a program last- .1510 Appointment of Chairperson ing less than an hour. The fee shall be set .1504 Size of Board The chairperson of the bBoard shall be by the board upon approval of the council. The bBoard shall have nine members, all appointed from time to time as necessary by Any sponsor, including a registered sponsor, of whom must be attorneys lawyers in good the cCouncil. The term of such individual as that conducts an approved program which standing and authorized to practice in the state chairperson shall be one year. The chairper- is offered without charge to attendees shall of North Carolina. son may be reappointed thereafter during his not be required to remit the fee under this or her tenure on the bBoard. The chairperson section. Attendees who wish to receive .1505 Lay Participation shall preside at all meetings of the bBoard, credit for attending such an approved pro- The bBoard shall have no members who shall prepare and present to the cCouncil the gram shall comply with paragraph (a)(2) are not licensed attorneys lawyers. annual report of the bBoard, and generally of this rule. shall represent the bBoard in its dealings with (2) Program Application Fee – The sponsor .1506 Appointment of Members; When; the public. of a CLE program shall pay a program ap- Removal plication fee due when filing an application The members of the bBoard shall be ap- .1511 Appointment of Vice-Chairperson for program accreditation pursuant to Rule pointed by the cCouncil. The first members The vice-chairperson of the bBoard shall .1520(b). Program application fees are non- of the board shall be appointed as of the quar- be appointed from time to time as necessary refundable. A member submitting an ap- terly meeting of the council following the cre- by the cCouncil. The term of such individual plication for a previously unaccredited pro- ation of the board. Thereafter, members shall as vice-chairperson shall be one year. The gram for individual credit shall pay a be appointed annually as of the same quarterly vice-chairperson may be reappointed there- reduced fee. The board shall fix a reasonably meeting. Vacancies occurring by reason of after during tenure on the bBoard. The vice- comparable fee to be paid by individual death, resignation, or removal shall be filled chairperson shall preside at and represent the attorneys who attend for CLE credit ap- by appointment of the cCouncil at the next bBoard in the absence of the chairperson and proved continuing legal education pro- quarterly meeting following the event giving shall perform such other duties as may be grams for which the sponsor does not sub- rise to the vacancy, and the person so appointed assigned to him or her by the chairperson or mit a fee under Rule .1512(a)(1) above. shall serve for the balance of the vacated term. by the bBoard. Such fee shall accompany the member’s Any member of the bBoard may be removed annual affidavit. The fee shall be set by the at any time by an affirmative vote of a majority .1512 Source of Funds board upon approval of the council. of the members of the cCouncil in session at a (a) Funding for the program carried out (3) Fee Review – The Board will review regularly called meeting. by the bBoard shall come from sponsor’s fees the level of fees at least annually and adjust and attendee’s fees an annual CLE atten- the fees as necessary to maintain adequate .1507 Term of Office dance fee and program application fees as finances for prudent operation of the Board Each member who is appointed to the provided below, as well as from duly assessed in a nonprofit manner. The Council shall bBoard shall serve for a term of three years be- penalties for noncompliance and from rein- annually review the assessments for the ginning as of the first day of the month fol- statement fees. Chief Justice’s Commission on Profession- 14 SUMMER 2022
alism and the North Carolina Equal Access official duties. over the administration of these rules; to Justice Commission and adjust them as (c) Disbursement. - Disbursement of funds (2) to adopt and amend regulations con- necessary to maintain adequate finances of the bBoard shall be made by or under the sistent with these rules with the approval for the operation of the commissions. direction of the sSecretary treasurer of the of the cCouncil; (4) Uniform Application and Financial Re- North Carolina State Bar pursuant to authority (3) to establish an office or offices and to sponsibility – Fees shall be applied uni- of the cCouncil. The members of the bBoard employ such persons as the bBoard deems formly without exceptions or other prefer- shall serve on a voluntary basis without com- necessary for the proper administration of ential treatment for a sponsor or member. pensation, but may be reimbursed for the rea- these rules, and to delegate to them appro- (b) Funding for a law practice assistance sonable expenses incurred in attending meet- priate authority, subject to the review of program shall be from user fees set by the ings of the bBoard or its committees. the cCouncil; board upon approval of the council and from (d) All revenues resulting from the CLE (4) to report annually on the activities and such other funds as the council may provide. program, including fees received from atten- operations of the bBoard to the cCouncil (c) No Refunds for Exemptions and Record dees and sponsors, late filing penalties, late and make any recommendations for Adjustments. compliance fees, reinstatement fees, and changes in the fee amounts, rules, or meth- (1) Exemption Claimed. If a credit hour interest on a reserve fund shall be applied first ods of operation of the continuing legal of attendance is reported to the board, the to the expense of administration of the CLE education program; and fee for that credit hour is earned by the program including an adequate reserve fund; (5) to submit an annual budget to the board regardless of an exemption subse- provided, however, that a portion of each cCouncil for approval and to ensure that quently claimed by the member pursuant sponsor or attendee fee, annual CLE fee and expenses of the bBoard do not exceed the to Rule .1517 of this subchapter. No paid program application fee, in an amount to be annual budget approved by the cCouncil.; fees will be refunded and the member shall determined by the cCouncil, shall be paid to (6) to administer a law office assistance pay the fee for any credit hour reported on the Chief Justice’s Commission on program for the benefit of lawyers who re- the annual report form for which no fee Professionalism and to the North Carolina quest or are required to obtain training in has been paid at the time of submission of Equal Access to Justice Commission for the area of law office management. the member’s annual report form. administration of the activities of these com- (b) The bBoard shall be organized as fol- (2) Adjustment of Reported Credit Hours. missions. Excess funds may be expended by lows: When a sponsor is required to pay the the cCouncil on lawyer competency pro- (1) Quorum. Five members A majority of sponsor’s fee, there will be no refund to the grams approved by the cCouncil. members serving shall constitute a quorum sponsor or to the member upon the mem- of the bBoard. ber’s subsequent adjustment, pursuant to .1514 Meetings (2) The Executive Committee. - The Board Rule .1522(a) of this subchapter, to credit The Board shall meet at least annually.an- may establish an executive committee. The hours reported on the annual report form. nual meeting of the board shall be held in Oc- executive committee of the bBoard shall When the member is required to pay the tober of each year in connection with the an- be comprised of the chairperson, a the vice- attendee’s fee, the member shall pay the nual meeting of the North Carolina State Bar. chairperson, elected by the members of the fee for any credit hour reported after any The bBoard by resolution may set regular board, and a member to be appointed by adjustment by the member to credit hours meeting dates and places. Special meetings of the chairperson. Its purpose is to conduct reported on the annual report form. the bBoard may be called at any time upon all necessary business of the bBoard that notice given by the chairperson, the vice-chair- may arise between meetings of the full .1513 Fiscal Responsibility person, or any two members of the bBoard. bBoard. In such matters it shall have com- All funds of the bBoard shall be considered Notice of meeting shall be given at least two plete authority to act for the bBoard. funds of the North Carolina State Bar and days prior to the meeting by mail, electronic (3) Other Committees. - The chairperson shall be administered and disbursed accord- mail, telegram, facsimile transmission or tele- may appoint committees as established by ingly. phone. A quorum of the bBoard for conduct- the bBoard for the purpose of considering (a) Maintenance of Accounts: Audit. - The ing its official business shall be a majority of and deciding matters submitted to them North Carolina State Bar shall maintain a sep- the members serving at a particular time. by the bBoard. arate account for funds of the bBoard such (c) Appeals. - Except as otherwise provided, that such funds and expenditures therefrom .1515 Annual Report the bBoard is the final authority on all matters can be readily identified. The accounts of the The bBoard shall prepare at least annually entrusted to it under Section .1500 and Sec- bBoard shall be audited on an annual basis in a report of its activities and shall present the tion .1600 of this subchapter. Therefore, any connection with the audits of the North Car- same to the cCouncil one month prior to its decision by a committee of the bBoard pur- olina State Bar. annual meeting. suant to a delegation of authority may be ap- (b) Investment Criteria. - The funds of the pealed to the full bBoard and will be heard by bBoard shall be handled, invested and rein- .1516 Powers, Duties, and Organization the bBoard at its next scheduled meeting. A vested in accordance with investment policies of the Board decision made by the staff pursuant to a dele- adopted by the cCouncil for the handling of (a) The bBoard shall have the following gation of authority may also be reviewed by dues, rents, and other revenues received by the powers and duties: the full bBoard but should first be appealed to North Carolina State Bar in carrying out its (1) to exercise general supervisory authority any committee of the bBoard having jurisdic- T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 15
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