Month: August 2016

Attorneys, Paralegals Beware: Wire Instruction Fraud Plagues N.C. Lawyers

 Stell,CamilleBy Camille Stell

Over the last few weeks, Lawyers Mutual has received multiple reports of North Carolina attorneys who were targeted by scammers attempting to divert seller closing proceeds following real estate transactions. Unfortunately, several of these attacks were successful and hundreds of thousands of dollars were stolen and are very unlikely to be recovered.

I’ve asked our claims attorney, Troy Crawford, to talk with me about what went wrong and how to prevent it.

Troy: While the details of the recent scams are emerging, it appears hackers first became aware of the closing by compromising email accounts of differing parties.  Sometimes the attorney account was compromised, sometimes the seller’s account was compromised but the most common scenario was the realtor’s account was being monitored by international criminal organizations.

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The Chair’s Comments: An Exciting Course For the Year

Ward,Robert

By Robert M. Ward

I am honored to serve as chair for the 2016-2017 term. Let me begin by thanking Trey Allen for his outstanding job as our chair during the 2015-2016 term. Under Trey’s leadership we had a budget carryover, which was put to good use by Law Related Education. Additionally, as reported in the spring issue of The Constitutionalist, our membership increased more than 8 percent over the past year.

Our kickoff council meeting was held on Aug. 18, 2016, at the Bar Center. Jay Ferguson of Thomas, Ferguson & Mullins of Durham provided an excellent presentation: “Eighth Amendment: Evolving Standards of Decency to Eliminate the Death Penalty.” His presentation was quite informative and precipitated a lively discussion among the members of the council. To those of you who may be interested, Jay has agreed to share his Power Point presentation.  If you would like a copy, please contact him at:  ferguson@tfmattorneys.com

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The Chair’s Comments: Big Plans For the New Year

Leaven,JessicaBy Jessica E. Leaven

As I was preparing my first comments as chair, this tune kept coming to my mind. “To everything – turn, turn, turn – there is a season – turn, turn, turn.” Maybe it’s because the summer is ending and the kids are going back to school. Or maybe it’s because it’s blueberry season in the mountains, and going blueberry picking with my family always marks the end of summer and beginning of fall. It could be because during this election season, I’ve too often thought of the lines “a time for love, a time for hate, a time for peace, I swear it’s not too late.” Either way, it’s time to welcome everyone to the new bar year for the Labor & Employment Section, and it’s my turn to be our chair.

I’m very excited and honored to serve as chair of the Labor & Employment Section this year. It was my pleasure working closely with our immediate past chair, Grant Osborne, over the past year, and I am grateful to have the assistance of our section’s new officers, Vice Chair Margaret Manos, Secretary Michael Kornbluth, and Treasurer Melanie Tuttle, and committee leadership this year. We have big plans for our section this year, and I would like to use this comment as an opportunity to let you know about some changes we have made to the section’s newsletter, the wonderful lineup for the annual CLE and social events planned for this October in Asheville, and the push to develop podcasts for our section.

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Contemplations on ‘An Act to Further Define … ‘Practice [of] Law’,’ ‘Requirements for Web Site Providers’ and Chapter 84 of the North Carolina General Statutes

Osborne,GrantBy Grant B. Osborne

Ulysses Everett McGill (previously imprisoned for practicing law without a license and about to be hanged):  “It ain’t the law!”

Sheriff Cooley:  “The law? The law is a human institution.”

— “Oh Brother, Where Art Thou?” (Joel and Ethan Coen, 2001)

How much time have you spent reading Chapter 84 of the North Carolina General Statutes on “Attorneys-at-Law”? Probably not much, which is a little surprising considering that it defines what it means to engage in the “practice [of] law” in North Carolina and regulates what we do for a living. Most attorneys in North Carolina (including your humble author until he wrote this) have probably spent more time monitoring updates on LinkedIn and Facebook than they have engaging in study of the statutes that, until recently, gave us in North Carolina a virtual monopoly over the rendition of legal services. The General Assembly and our Governor, however, have recently amended what it means to engage in the “practice [of] law.” Those amendments warrant attention.

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What Is Collaborative Practice and What Does It Have To Do With the Practice Of Employment Law?

Woodward,DanaeBy Danae C. Woodward

Collaborative practice is a relatively new alternative dispute resolution process which has been adopted by family law practitioners throughout the United States and in many other countries. Collaborative law practice was developed in 1990 by a Minnesota family law attorney, Stuart Webb, who proposed this new dispute resolution practice to the Honorable A. M. Keith, Justice of the Minnesota Supreme Court. Webb believed that good lawyering, which he defined as “the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement” was often missing in early mediation. Webb sought to create a settlement climate replicating the way some of his cases had naturally settled:

We find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

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Recent Court Opinions

Murray,JoeBy Joseph S. Murray IV

The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following labor and employment law opinions in the past several weeks:

Adams v. State of NC, COA15-1275 (N.C. Ct. App. Aug. 2, 2016)

Hubbard v. NC State Univ., COA16-38 (N.C. Ct. App. Aug. 2, 2016)

Tully v. City of Wilmington, COA15-956 (N.C. Ct. App. Aug. 16, 2016)

RLM Communications, Inc. v. Tuschen, No. 14-2351 (4th Cir. July 28, 2016)

Amaya v. Power Design, Inc., No. 15-1691 (4th Cir. Aug. 15, 2016)

Calobrisi v. Booz Allen Hamilton, Inc., No. 15-1331 & No. 15-1399 (4th Cir. Aug. 23, 2016) (unpublished)

 

 

Young Lawyers Are Doing Good, But Not Always Doing Well

By Matt Cordell

The Young Lawyers Division recently held its 62nd Annual Meeting in connection with the NCBA Annual Meeting in Charlotte. As the ceremonial gavel was passed across the room from our former YLD chairs, including past NCBA presidents, our current president, and our president-elect, I thought about how the YLD has truly been a training ground for leaders of our profession and our state.

I then looked around the room at the remarkable young lawyers present. What an honor it is to serve alongside such an incredible group of people. The young lawyers who make up the YLD’s leadership team truly represent the best of our profession. They are smart, hardworking, selfless people who give their precious time and abundant talents, and together they are leading our more than 6,400 YLD members to achieve some remarkable things.

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Planning To Pursue An Appeal From A Business Court Decision? It’s A Jungle Out There!

Editor’s note: This is an updated version of the article that first appeared in the June 2016 edition of “The Litigator,” the NCBA Litigation Section newsletter. The article was updated Aug. 3, 2016.

By Beth Scherer and Matt Leerberg

BethScherer

When first established in 1995, the Business Court was touted as a way to make North Carolina’s “court system as responsive and predictable as the Delaware Chancery Court in dealing with complex corporate issues.”  The Business Court has largely delivered on its promise of ease of use and predictability based, in part, on assignment of cases to a single (and highly qualified) Business Court judge and an e-filing system that practitioners could utilize from any jungle paradise (with wi-fi access).  Practitioners must take heed, however.  At the end of each Business Court case lurks a menacing tiger: North Carolina appellate practice and procedure!

Over the past two years, at least seven different appellate traps have emerged for North Carolina Business Court cases, many of which have resulted in dismissal of appeals.  Those traps have been discussed extensively on our North Carolina Appellate Practice Blog (www.ncapb.com).  This article summarizes several potential snares, with links to the detailed blog posts for those who seek more information about taming the beast.

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Waiting Game: How Long Does It Take the N.C. Court Of Appeals To Issue Opinions?

Rakes,KenzieBy Kenzie M. Rakes

I am often called upon to answer questions related to pending appeals because I recently completed a clerkship at the Court of Appeals of North Carolina. When asked how long it will take the Court of Appeals to issue an opinion, I always say it is impossible to know with certainty, but the court has an internal policy of trying to issue opinions within 90 days of the date the appeal is scheduled for argument. After being involved in an appeal as an advocate, I decided to determine how long it takes the court to issue opinions.

First, I calculated the number of days it took the Court of Appeals to issue opinions in 2015 by counting the days from the date the appeal was scheduled for argument (regardless of whether oral argument was granted) until the date the opinion was issued. Not all appeals have an argument date. For example, some opinions are issued after the Supreme Court of North Carolina remands the case or after the Court of Appeals grants a party’s petition for rehearing. If the appeal was not argued, I treated the date that the appeal was remanded or the date the petition for rehearing was granted as the argument date.

Based on this methodology, I determined that the court issued opinions an average of 77 days after argument in 2015. The median was 62 days.

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