Month: January 2017 (page 1 of 2)

Tick-tock: February Means Attorneys Have 28 Days To Meet CLE Deadline

By Kim Wentworth

Ready or not, February is upon us.

As of Feb. 1, attorneys have 28 days to get their North Carolina State Bar Mandatory Continuing Legal Education (MCLE) in for 2016.

As attorneys know, they must complete 12 hours of CLE credit each year. Two of these hours must be ethics/professional responsibility credit and at least once every three calendar years, each attorney must complete one hour of substance abuse/mental health credit.

We all know how busy things get for attorneys and how the year can easily slip away, then before you know it, the grace period is almost over and you still don’t have your CLE hours completed. For that reason, the NCBA CLE department makes sure that its February schedule is as jam-packed as possible in order to give everyone ample opportunity to get their hours completed. It is our mission to get everyone across that finish line.

Here are some numbers to highlight what February looks like at the Bar Center and around the state:

  • 16 live programs this month in three locations — Cary, Greensboro and Pinehurst;
  • 12 webcasts members can participate in from the comfort of their own home or office;
  • 66 video replays happening in 17 cities all across the state including Cary, Winston-Salem, Concord, Pinehurst, New Bern, Boone, Wilson, Wilmington, Asheville, Greensboro, Fayetteville, Hickory, Lumberton, Roanoke Rapids, Charlotte, Manteo and Shelby;
  • 40 phone/audio streaming options, five webinar options and over 800 on-demand programs to view from your computer or mobile device;
  • Two Marathon Days (Feb. 25 and 28) when you can earn up to 18 hours of MCLE credit including seven hours of ethics/professional responsibility and four hours of substance abuse/mental health hours.

By the time this month comes to an end, not only will we have all lawyers caught up on their MCLE credit hours, we will also be celebrating another successful February in the books.





Chief Justice’s Commission Issues Report With Blueprint For Improving Indigent Defense

By Thomas K. Maher

On Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense.  The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges.  Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.

The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:

As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences

There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of  indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.

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Recent North Carolina and Fourth Circuit Opinions

By Sean F. Herrmann

The following is a quick look at some recent opinions from our neck of the woods:

First, in McAdams v. N.C. Dep’t. of Com., No. COA16-196 (N.C. App. December 6, 2016) (, the Court of Appeals of North Carolina upheld the trial court’s 12(b)(6) dismissal of the plaintiff’s wrongful discharge and whistle blower claims.

In Brown & Pipkins, LLC v. Service Employees International Union, Local 32BJ, No. 15-1931 (4th Cir. Jan. 23, 2017) (, the Fourth Circuit affirmed the district court’s confirmation of four labor arbitration awards, relying primarily on its review of a labor-arbitration decision under a CBA, and holding that the Union waived its claim for attorneys’ fees by not complying with Federal Rule of Civil Procedure 54.

Finally, in The Goodyear Tire & Rubber Co. v. Comm’r of Lab. of State of N.C., No. COA16-520 (N.C. App. Jan. 17, 2017) (, the Court of Appeals of North Carolina affirmed a lower court ruling—and NCOSHA order—finding that the company violated 29 C.F.R. § 1910.23(c)(1) by failing to install certain elevated railings surrounding its tire presses.

Make a Lasting Impression

By Kimberly M. Johnson

The flashing blue light. That’s what I remember about Mrs. Lake’s third grade class. Show-and-tell was the best part of my week; especially when that sheriff’s deputy gave a bunch of us a sightseeing tour of his patrol car. It made a lasting impression.

Conducting a job shadowing event at your office will provide a lasting impression of our chosen profession in the minds of the millennials and the Justin Bieber crowd.

We have plenty to share with them:

  • Think about it. We create an indelible footprint everyday: handling administrative tasks, sifting through personnel matters, building and maintaining relationships, plus mining through the cloud.
  • Think about it. We acquire blocks of knowledge on a consistent basis: CLEs from the North Carolina Bar Association, specialized certifications, certificates and on-the-job training.
  • Think about it. We are adept at adapting: collaborating with courthouse personnel, figuring it out with the IT support service guy, discussing the next action with a partner and smoothing out the rough spots with a client.
  • Think about it. We use our skills in “pressure cooker” situations: When a paralegal abruptly quits and leaves no instructions or when a computer glitch wipes out a document that you did not save on the F drive and did not have a back-up copy located on a portable thumb drive.

Job shadowing is a picture-perfect way to explain your routine and how it relates to other positions within your firm or company. Consider these tips when you start planning: get buy-in from department leaders, encourage your co-workers to participate and provide a take-home packet or business cards.

We can be the flashing blue light for the next generation.




MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please find his most recent link below.

Trademark Fee Changes

Wellness: When Feeling Good Feels Even Better Than Losing Weight

By Russell Rawlings

Wellness was not a familiar term when I did something about mine in 1978. That was the year I lost 140 pounds and changed my life forever.

Whether that qualifies me to write on the subject of wellness remains to be seen. There’s certainly more to wellness than losing weight. On the other hand, wellness would be difficult to achieve without some semblance of weight control.

If there is any advantage to having been the fat kid in school all the way into my senior year of college, it would be my experience with weight. From gaining it to losing it, from living with it to keeping it off, I know weight, and it knows me.

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New Year, New Blog

By Benita N. Jones

Happy New Year!  As 2017 gets into full swing, change is all around us — a new president has taken office in Washington, a new governor has taken office in Raleigh, and with both come new elected officials, new appointments, new agendas, and new policy directions. In the midst of these changes, there is certainty that the next few months will bring new developments in the area of education law at the state and federal levels.

Our blog is an effort to keep our section members abreast of education law developments in a timely manner. I would like to extend my sincere gratitude to Stephen Moore and Erin Edgar, co-chairs of the Newsletter and Homepage Committee, for working to transition the section from the newsletter to the blog format. If you would like to contribute a post to the blog, please do not hesitate to contact Stephen, Erin, or me. Blog posts can be short legal updates or “thought pieces” that section members desire to share with their colleagues and fellow education law practitioners. Our goal is to have a new blog post every three weeks.

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Foster Care Extended to Age 21

By Sara DePasquale

The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on Jan. 1. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”).

Eligibility Based on Age

A juvenile who is in foster care when he or she turns 18 may enter into a voluntary foster care agreement with a county department and continue to receive foster care services and benefits until turning 21. GS 131D-10.2B(a). The young adult who has aged out of foster care may enter into a voluntary foster care agreement at any time prior to his or her 21st birthday. Id.

There is nothing in the statute or state policy that limits enrollment to those children who age out of foster care on or after Jan. 1, 2017. As a result, it appears that children who aged out of foster care before Jan. 1, 2017 and who are not yet 21 years old may enroll in the Foster Care 18-21 program. Those young adults may contact either the county department where they were in foster care (county of origin) or where they currently reside. NC DSS §1201, XII.J.

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Air Jordan’s Absence In the ’90s

By Jonathan Bogues

As attorneys, we are all well aware of how diverse the practice of law is and how each area of the law intersects with other areas. However, not many non-attorneys are aware of the intersection between intellectual property law and sports and entertainment law.

Like many other children of the nineties, I grew up idolizing basketball megastar Michael Jordan. As a kid growing up on Tobacco Road, I was in awe of Michael Jordan’s seemingly unlimited skill set.  So you can imagine many children’s collective disappointment when our hero was not in several video games growing up. The National Basketball Association (NBA) and the National Basketball Players’ Association Shared Licensing Agreement is one reason for that.

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Federal Income Tax Update

By Keith A. Wood

This is the first of two installments of this article.  The second installment will appear soon on the Tax Section’s blog.

I. Audit Statistics; What Are Your Chances of Being Audited?

In early 2016, the IRS published its 2015 Internal Revenue Service Data Book (IR-2016-52), which contains audit statistics for the fiscal year ending September 30, 2015.  Here are the audit statistics for returns filed in calendar year 2014 (“CY 2014”):

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