Welcome To the Family Law Blog For 2018-19

Ketan P. Soni, Communications Co-chair

This year, your Family Law Section Communications Committee Chairs intend to put some structure into blog posting to show the rest of the NCBA that the Family Law Section is where to look for model behavior. Let’s face it: We kind of “win” against most other sections, right?

What is blogging? It’s the “new” newsletter. We just had the Family Law Section Annual Meeting with the theme “Brave New World: Is the Future of Family Law Utopian, Dystopian or Somewhere in Between?” We are attempting to live those (utopian) ideals by moving toward providing more frequent information from and about the section. In any event, here’s the map:

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Fourth Circuit Adopts ‘But-For’ Causation For False Claims Act Retaliation Cases

By Andrew J. Henson
Earlier this month in United States ex rel. Cody v. ManTech, Int’l, Corp., 2018 WL 3770141 (4th Cir. 2018), the Fourth Circuit determined that a “but-for” causation standard should apply to retaliation claims under the Federal False Claims Act (“FCA”). 31 U.S.C. § 3729, et seq.

The Fourth Circuit’s opinion scrutinized the FCA’s retaliation protections, which apply in part if an employee is discharged, “because of lawful acts done by the employee, . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].” 31 U.S.C. § 3730(h)(1) (emphasis added). The court reviewed this statute in conjunction with two significant Supreme Court cases construing similar federal employment statutes, Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (finding “but-for” causation under the ADEA where the statute utilized the phrase “because of”), and Univ. of Texas Southwest Med. Center v. Nassar, 570 U.S. 338 (2013) (finding the phrase “on the basis of” in Title VII retaliation claims required but-for causation). Moreover, by this decision, the Fourth Circuit joins the opinions of the Seventh, Fifth, and Third Circuits on that same issue. See DiFiore v. CSL Behring, LLC, 879 F.3d 71 (3d Cir. 2018) (finding but-for causation under FCA retaliation claims); United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318 (5th Cir. 2017) (same); United States ex rel. Marshall v. Woodward, Inc., 812 F.3d 556 (7th Cir. 2015) (same).

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Interested In Assisting With CLE? Let Us Know By Friday

By Holland Ferguson

Dear Section Members,

I hope everyone has had a wonderful summer. As many of you may know, we are in the process of planning two CLEs for our section. Click here for information on the Nov. 30 CLE. Details regarding the other CLE are forthcoming.

In addition, the NCBA has asked if our Section would be interested in assisting in planning a CLE related to social security disability. This CLE is currently set for Jan. 18, 2019 at the Bar Center in Cary. It is not anticipated that this CLE will be an advanced course as it will likely explore new rules/updates, hearing protocol, and hopefully include an ALJ or a panel to answer questions and provide best practices for social security disability. There is some overlap in practice between workers’ compensation and social security disability, so we wanted to inquire and see if anyone in the section was interested in co-planning this social security disability CLE. If you are interested, please reach out to either myself or Kate M. Leahy, Continuing Legal Education Manager for the North Carolina Bar, by Friday, Aug. 31, 2018.

Sincerely,

Holland B. Ferguson

 

Let’s Recognize the Peacemakers Among Us

By M. Ann Anderson

North Carolina is a leader in the country for innovative and effective dispute resolution for its citizens. That leadership came about through the hard work of North Carolina citizens who, in hindsight, seem to have had a crystal ball predicting the importance of aiding people in conflict to find ways to resolve their disputes outside of the courtroom.

To honor those who provided this groundwork and who continue to work tirelessly in the field of dispute resolution, the North Carolina Bar Association Dispute Resolution Section periodically recognizes an individual or individuals in North Carolina who has or have made a special commitment to the peaceful resolution of disputes. Nominations are restricted to North Carolina residents who are selected by the Section’s Nominating Committee based on the award criteria[1].

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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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Aug. 18, 2018

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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