By Kimberly M. Johnson
My first attempt at leaping into the unknown was when I switched careers from meeting deadlines for one editor to meeting deadlines for an attorney, a clerk and a client. My organizational and writing skills were the pillars that held me steady during my time at the public defender’s office. I learned about criminal law and the inner workings of the courthouse, and the unknown became familiar.
A couple of leaps forward landed me in Raleigh. And soon, the unknown became familiar. That’s why I am planning to attend the Paralegal Division Family Law CPE on March 23 at the Bar Center. I will admit it. The closest I have been to family court is a courtroom observation during my paralegal days. So, this seminar is pretty exciting for me.
Sports & Entertainment Law Section
By Mike Ingersoll
As an increasingly contested topic since the rise of the Bowl Championship Series in the early-2000s and the NCAA’s 2010 multi-billion dollar March Madness broadcasting deal, as well as the recent advent of the College Football Playoff, the NCAA’s amateurism model has come under intense scrutiny—and with it the employment status (or lack thereof) of the student-athletes over which it governs. Public opinion and scholarship has virtually wed the two issues at this point, and the modern revenue sport landscape has dictated heated discussion but yielded none of the drastic changes for which proponents of reform have called.
By Laura Wetsch and Faith Herndon
We are your legislative co-chairs for this long session. Over the past few weeks, we have seen a number of bills that will potentially impact your practice or your clients. Many of these bills are not likely to pass, but it is too soon to say which will die a lonely, miserable death in a rules committee. We will try to keep you updated, but here’s the list of bills we are watching, so far:
By Russell Rawlings
The February 2017 edition of North Carolina Lawyer magazine acknowledged the inauguration of Roy Cooper, a lawyer and member of the North Carolina Bar Association, as North Carolina’s 75th governor.
The article also denoted an impressive statistic regarding the frequency with which lawyers have held this state’s highest office since the establishment of the NCBA. Since 1899, it was reported, 19 lawyers and only seven non-lawyers have served as governor.
Robert Brodnax Glenn, photo courtesy of the State Archives of North Carolina
That is incorrect.
Actually, 20 lawyers and only six non-lawyers have held the state’s highest office during the 118-year history of the NCBA. Correcting the lawyer designations in the following list of N.C. governors, derived from the NCBA’s centennial history book, Robert Brodnax Glenn was also an attorney.
He was, in fact, a United States Attorney, appointed by President Grover Cleveland in 1893. Glenn served as governor from 1905-09 and practiced law in Winston-Salem with Glenn & Glenn. The firm traces its history to 1876 and will be more familiar to most folks under its current nameplate: Womble Carlyle Sandridge & Rice.
By Joseph S. Murray IV
You and I make a deal: You pay me monthly installments and when an event occurs, I will pay you a set amount of money (we’ll call this deal “life insurance”). After several years, I notify you that you have failed to return a required document, allowing me to void the life insurance. The event occurs and I refuse to pay. In most circumstances you could potentially make claims against me for negligent misrepresentation or fraud; constructive fraud; and negligent or intentional infliction of emotional distress. But if I were your employer, all of these claims would be preempted by the Employee Retirement Income Security Act (ERISA).
In Prince v. Sears Holdings Corp., No. 16-1075 (4th Cir. Jan. 27, 2017), the 4th Circuit reiterated that regardless of what a plaintiff calls a claim or how the plaintiff frames the claim, if ERISA applies, then ERISA pre-empts that claim. In 2011, Prince purchased a life insurance policy on his wife through his employer, Sears. Sears sent a confirmation letter and began withholding premiums from Prince’s pay. Later that year, Mrs. Prince was diagnosed with cancer. In 2012, Prince checked his benefits summary with Sears, which confirmed the life insurance. In 2013, Sears notified Prince that he had not returned a required document in 2011—Prince denied receiving the document but had no proof it had not been sent—and, therefore, Prince’s insurance would be canceled. Mrs. Prince died in 2014 and Sears denied Prince’s claim on the insurance policy.
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 links below.
Copyright Office Technical Amendments To Regulations: Final Rule
Copyright Office Interim Rule To Implement the FOIA Improvement Act of 2016
On behalf of the Legislative Committee of the Health Law Section Council, we are providing the following information to alert Health Law Section members regarding several recently filed bills at the North Carolina General Assembly that may affect your clients or your practice. Find the text and status of the bills at the links provided:
- House Bill 88 and Senate Bill 73, each filed on Feb. 14, make substantial changes to the Nursing Practice Act.
- House Bill 62, filed Feb. 8 and currently in the Committee on Health, creates certain communication requirements by health care professionals to their patients during drug-induced abortions.
- House Bill 36, currently in the Committee on Health, affects the practice of optometry.
- House Bill 57, currently in the Committee on Health, affects the interstate practice of physical therapy.
- Senate Bill 42, currently in the Committee on Health Care, directs the Medical Care Commission to repeal certain hospital facility construction rules, and adopt the American Society for Healthcare Engineering’s Guidelines for the Design and Construction of Hospital and Outpatient Facilities.
As attorneys, we are tasked with the great and noble responsibility of defending the rule of law – case by case, client by client. While our system is not perfect, the law’s ability to right wrongs, to reconcile conflicts, and to resolve disputes peacefully is a measure of who we are as a people, and the rest of the world looks to our courts as the exemplar of fair and impartial administration of justice.
Nevertheless, this fairness and impartiality only truly exist when they are available to all members of our state, regardless of ability to pay. A failure to provide adequate legal services to those of modest means affects both the economic and social fabric of our society, and does not adequately represent the principles of the profession to which we have been called. It is our duty to fill the gap that exists between this challenging reality and the highest ideal of our profession – equal justice under law for all people.
By Ben DeCelle
Perhaps the most difficult challenge, legal or otherwise, faced by the NCAA and its member institutions today is how to manage the risks associated with concussions in sports. Particularly within the last decade, these organizations have focused on risk management—“the process of evaluating the chance of loss or harm and then taking steps to combat the potential risk”1—as a way to minimize harm to individual athletes and decrease the likelihood that they will be subject to massive lawsuits. However, as the NCAA and member institutions have now discovered, risk management as a strategy is much more effective in other aspects of their business than with the risks associated with concussions. For example, many universities have begun to hire outside law firms or other specialists to conduct internal investigations and risk assessments in an effort to minimize the chance that they would bring in a coach or player with a risky past (and perhaps to minimize liability if a situation were to occur in the future).2 Risks associated with concussions, on the other hand, are much more difficult to manage because their occurrence is inherent in almost every existing sport. In other words, how can schools and the NCAA effectively manage a risk that is absolutely certain to occur no matter how much money or effort is diverted to it?