NC Secretary of State Cracks Down on Cryptocurrency-Based Security

By Andrew Steffenson

As cryptocurrencies, blockchain technologies, and virtually all things containing the words “crypto” or “blockchain” continue to experience a meteoric rise in popularity, regulators face an abundance of issues related to the classification and regulation of cryptocurrencies and activities related to cryptocurrencies. Likewise, investors and consumers are besieged by an ever increasing number of fraudulent and exploitative individuals and companies attempting to defraud investors and consumers by capitalizing on the frenzied enthusiasm and excitement surrounding cryptocurrencies and blockchain technology. The North Carolina Secretary of State Securities Division (the “Division”) recently cracked down on one such company, which operated under the name Power Mining Pool. The Division found that Power Mining Pool was, among other things, selling securities in violation of the North Carolina Securities Act (N.C.G.S. §78A) (the “Act”).

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The GDPR: An Example Of the Extraterritorial Effects Of Regulations

By Kemal Su

The European Union’s (EU) new regulation on data protection, The General Data Protection Regulation (GDPR), went into effect on May 25, 2018, slightly more than two (2) years after it was accepted by the European Parliament on April 14, 2016. The EU has had regulations pertaining to data protection since 1995. However, the GDPR unifies and simplifies all previous regulations in this regard.

Although the GDPR is only effective and designed to protect individuals’ data within the EU, the effects of the GDPR can be felt more globally. For example, all companies which process the personal data of EU citizens, i.e. by collecting, receiving, transmitting, using or storing data, must abide by the provisions of the GDPR even if they are not located in an EU member state. Moreover, the GDPR also applies to companies who offer goods or services to EU individuals or monitor these individuals’ behavior.

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Pretrial Justice and Criminal Case Management Reform

By Robert C. Kemp III

One of the greatest honors in my professional career was serving on the N.C. Commission on the Administration of Law and Justice. As a member of the commission, I was assigned to the Committee on Criminal Investigation and Adjudication. Two of the topics we focused on were pretrial justice and criminal case management.

Although various methods of pretrial release exist in North Carolina, a secured bond is the most common form of release for a person charged with a criminal offense. Few defendants can afford to post the bail amount in full. Some defendants utilize bail bondsmen, who charge a percentage of the total bond amount in exchange for obtaining the defendant’s pretrial release. Unfortunately, many defendants cannot afford either option and are forced to remain in jail. Most such defendants are also unable to retain counsel and are instead represented by court-appointed counsel, such as a public defender.

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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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James King has joined Cranfill Sumner & Hartzog LLP as an associate based in its Raleigh office. King will join the firm’s Medical Malpractice Practice Group. King previously worked in the general litigation practice of a law firm in Greensboro. Prior to joining CSH Law, he worked on a variety of matters including the defense of medical malpractice claims and professional licensing board investigations.  King is a North Carolina native and a graduate of the University of North Carolina School of Law, with honors.

 

 

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The Litigation Section Needs You!

By Philip Isley

For the entire 26 years of my practice, I have been a litigator. While my practice also includes non-litigation matters such as lobbying and “legal crisis management” (a fixer, so to speak…), the core of what I do – and what I’ve done for my professional career – is litigate. I’ve also had the honor of being a local elected official for eight years, and I can tell you that being a litigator certainly helped me with the transition into politics/advocacy/service to others. Politics also made me a better litigator by teaching me that relationships matter – whether with your opposing counsel, the judiciary, the courthouse staff, or anyone else you may run into on a regular basis. Politics also taught me this very valuable lesson: You can accomplish a great deal if you do not seek or crave credit for your accomplishments. This lesson has probably done more for me in the past ten years than anything else.

Help us plan for the future at the Litigation Section strategic planning meeting Aug. 17. Click for details.

If someone had asked me what a litigator was supposed to do when I graduated from law school, my answer would have most assuredly been, “A litigator is a fighter.” I probably felt this way for the first six to ten years of practicing law. I did not recognize that in addition to fighting, litigation is also supposed to be about solving problems. When asked today what I do as a litigator, my response typically is, “I try to fix problems whether litigation is involved or not, because at the end of the day, litigation sucks!” Perhaps that is a little too strong, especially given that is what we all do in our chosen profession. But, in all seriousness, how many times has this thought run through your head since you’ve been practicing law? I bet you’ve thought this when you’ve had to deal with your obstreperous client, or when your opposing counsel drives you crazy, or the costs to litigate have grown exponentially, or the judge has ruled against you, or WHATEVER problem du jour you are dealing with that erupts in any case that you are currently handling. Let’s face it, litigation can be challenging, frustrating, expensive, unfair and long – even if you win your case. But often, it is also the best tool trying to fix (or end) civil disputes.

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Avoid a Benchslap: Four Writing Tips You Ignore At Your Peril

By Abigail Perdue

Above the Law’s founder, David Lat, has been credited with coining the term “benchslap” in 2004.[1] It generally refers to a particularly scathing insult from a judge to an attorney, litigant, or on occasion, another judge.

Benchslaps occur in many forms and for many reasons. For example, in Mannheim Video v. County of Cook, a Seventh Circuit panel “benchslapped” counsel by pointing out that the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”[2] Likewise, in denying a motion for disqualification, a U.S. District Court Judge concluded that the Defendants “aspire[d] to be magicians. . . . [L]ike David Copperfield’s tricks, their motion [was] nothing but smoke and mirrors.”[3] He expressed doubt that counsel had “adequately research[ed] the case law”[4] and warned them to “think twice before filing such a baseless motion” or “risk being sanctioned.”[5]

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And in the blink of an eye, it’s over… 

By Debbie Harris

The 2017-2018 Bar year flew by, and the Paralegal Division accomplished many great things. On behalf of the Paralegal Division Council, we hope the following summary will make you proud to be one of more than 1,600 members across the state. Allow me to share some highlights from the year:

Celebrating the 20th Anniversary of the Paralegal Division

We celebrated our 20th Anniversary at our Paralegal Division Annual Meeting (reception and conference) May 3 and 4 in Pinehurst. THANK YOU to everyone who attended! We had a wonderful offering of CPE programs including General Sessions on “How to Assist Lawyers in Transition” and “Ethics and Professionalism for the Modern Paralegal.” Additionally, our breakout sessions included the “North Carolina Identity Theft Protection Act,” “Hot Topics with the Secretary of State,” “Updates to the Uniform Power of Attorney Act,” “What Would Lincoln Do” (which shared timeless ethics lessons preserved in historical documents), “Employment in the Age of Social Media,” “Care and Feeding of Court Personnel,” and many other great topics.

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Welcome to the Dispute Resolution Blog!  Goodbye, Old School. Hello, Smart and Sassy!

By Nancy Black Norelli

Big, big shoes to fill!

I am excited to be a part of our inaugural blog that replaces the old-school Peacemaker, which served us well for decades.  We are blessed with two fantastic editors who will edit and procure articles and launch us into this modern, easy, sassy way to communicate. Please send your ideas or proposed blog to our Blog Co-Editors Tara Muller (tara@mullerlawfirm.com) or Kate Deiter Maradei (kate@deitermediation.com).

Ron and Nancy Norelli and LeAnn Nease and Gordon Brown celebrate a great year at the NCBA Annual Meeting in Wilimington.

Wonderful news!  Our Section has produced an NCBA president-elect! Please join me in congratulating LeAnn Nease Brown (lnease@brownandbunch.com). She promises to be an outstanding president as her participation at the NCBA includes chairing three sections, the formidable CLE Committee and a host of other committees and projects. The breadth of her knowledge and true affection for our profession and her compassion and astute judgment will propel the NCBA to new heights as challenges and opportunities are addressed.

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Can Lawyers Be Good Samaritans?

By Marc E. Gustafson

We’re all familiar with the story of the Good Samaritan. Some states even have Good Samaritan laws. But did you know that a lawyer played a prominent role in the telling of the Good Samaritan parable? I will tell you, based upon first-hand experience, that hearing a reference to a lawyer in church sure will make you sit up straight in the pew.

Before you stop reading, this isn’t a Bible story. In fact, it’s not a religious piece at all. So, don’t go back to Facebook or close your browser.

If you didn’t know, Jesus was adept at taking a question and turning it into a lesson. And as the parable about the man who stops to help the stranger goes, it wasn’t a saint or a sinner, but a lawyer that asked Jesus that prefatory question. He inquired, “What must I do to inherit eternal life?” And Jesus responded by asking in return, “What is written in the law?” and “How do you read it?”

Wait. What? The answer to eternal life is in the law? And Jesus is asking a lawyer to interpret the law? I know, I know. The law being referred to is religious law, in other words scripture, but hang in there with me. (As an aside, I would love to go back to that day, when lawyers were respected for their opinions on such important matter. But, alas, that is for another article.)

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