On Thursday, the Supreme Court of North Carolina issued its latest amendments to the North Carolina Rules of Appellate Procedure. The amendments impact word-count limitation applicable to appellate briefs and parental leave.
Rule 3.1 Supreme Court Briefs are Subject to Rule 28(j)’s Word Count Limitation
Historically, word-count limitations have not applied to appellate briefs filed in either direct or secondary appeals to the Supreme Court. In January 2019, the Supreme Court overhauled Appellate Rule 3.1 to reflect a shift of appellate jurisdiction over a subset of Rule 3.1 juvenile appeals from the Court of Appeals to the Supreme Court. As noted here, I was surprised to learn during a March 2019 CLE that the Supreme Court was interpreting Appellate Rule 3.1(f) to implement a word-count limitation for Rule 3.1 briefs filed in the Supreme Court. The September 2019 amendments now remove any doubt: Rule 3.1 briefs filed in either appellate court are subject to Appellate Rule 28(j)’s word-count limitation.
Minorities in the Profession Committee: The Minorities in the Profession Committee of the NCBA will host an attorney-student networking social at Campbell Law School in downtown Raleigh on Sept. 18 from 5:30-7:30 p.m. The YLD Diversity & Inclusion Committee encourages all YLD members to join MIP for refreshments and the chance to network with fellow legal professionals and law students. RSVP by 5 p.m. on Friday, Sept. 13.
Heads up, North Carolina hospitals and doctors! On Wednesday, September 30, the North Carolina Supreme Court will hear oral argument in Hamlet v. Hernandez. The Court’s decision may have a significant impact on the way physicians work and negotiate with hospitals in North Carolina, and could have ripple effects extending to employment practices in other industries.
Background
A hospital system hired Dr. Pedro Hernandez as an independent contractor and gave him hospital privileges. The contract had a 36-month term and provided that Dr. Hernandez could choose to become an employee of the hospital 18 months into the contract term.
When his private practice failed, Dr. Hernandez tried to exercise his option to be hired as an employee. The hospital did not send him a new contract of employment but apparently believed that his original agreement encompassed the “employment” option. However, Dr. Hernandez began looking for work elsewhere and shut down his practice more than a year before the end of his contract period with the hospital.
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The net operating loss (“NOL”) rules in Section 172 are complex. A revisit every few years is beneficial, particularly given the 2017 Tax Act modified these rules to disallow NOL carrybacks and allow NOL carryforwards indefinitely, with a new limit of 80% of taxable income.
While the rules seem simple at first glance, how they work with various types of losses is surprising. For example, one who embezzles from an employer is rightfully assessed tax on the income from his or her illegal activities pursuant to the landmark ruling of James v. United States, 366 U.S. 213 (1961). That decision, while answering the question of whether illegally obtained income is taxable, created a new question of how the repayment of embezzled funds is treated for income tax purposes. Although both the IRS and the taxpayers agreed a deduction should be allowed where embezzled funds are repaid, they differed on which Code section provides the deduction. The IRS maintained the deduction is allowed under Section 165(c)(2), which addresses “losses incurred in any transaction entered into for profit, though not connected with a trade or business.” In contrast, the taxpayers in a number of cases argued the embezzlement itself was a trade or business, the embezzled funds were invested in a trade or business, or the embezzlement from their employer was inextricably linked to their trade or business of being an employee with such employer.
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Welcome to the 2019-2020 bar year! I look forward to working with you, our Council members, and committee chairs this year, and I want to thank our committee chairs for volunteering their time to invest in our Section.
As we start the year, please mark your calendar and consider the following opportunities:
The 2020 Education Law Section Annual Meeting and CLE will be held on Thursday, May 7, 2020. Please note this is a date change from the original date. The planning committee will be sending out a survey soon to learn more about what you are interested in covering at this year’s CLE. Please participate so that our CLE will reflect your interests!
If you haven’t done so yet, please renew your NCBA membership soon. As you may know, the NCBA has revised its due structure, and one of the benefits is access to a monthly on-demand CLE from the Expert Series. Renew your membership now so that you can add the September CLE before it expires. Information about membership renewal is available here.
Among other activities, our Section has committees for CLE planning, LIFT (Law Institute for Teachers), and legislative updates. Our great committee chairs would welcome your help. If you are interested in assisting with a committee, please let me know and I would be happy to connect you with the committee chair. The full list of our committees and their respective chairs is available on our Section website.
Our Section will hold a networking event on Thursday, October 17 at 5:30 at Bonefish Grill Cary (2060 Renaissance Park Place, Cary). Please mark your calendars, and I hope you’ll join us!
One of my goals this year is to make our Section’s activities responsive to your practice. If you have ideas for the types of blog posts or networking events that would interest you, please do not hesitate to contact me with suggestions.
Melissa Michaud NCBA Education Law Section 2019-2020 [email protected]
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In the legal profession, we’re trained to envision and prepare for worst case scenarios. We devote significant time and mental resources to thinking about catastrophic outcomes. But how do we balance this often necessary professional mentality with our daily lives?
I had a mild epiphany the other day when I found myself prefacing an email to a fellow lawyer with the words “unless Murphy’s Law has prevailed…”
It wasn’t intentional on my part, but in acknowledging the prevalence of Murphy’s Law, I realized that I had snagged a common thread that runs through most legal minds. Perhaps many lawyers and judges, regardless of their natural proclivities or personality types, may share a chuckle of recognition at our customary professional pessimism.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Russell Rawlingshttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngRussell Rawlings2019-09-09 09:11:222021-03-02 09:31:46‘Murphy’s Law,’ or How an Aphorism Can Sum Up the Legal Mind
By Erna Womble Welcome to the blog of the newly minted Professional Vitality Committee (PVC) of the NCBA! I am Erna Womble, and it’s my honor to serve as Chair this year, and my pleasure to say that Holly Morris is serving as our Communities Manager (NCBA staff liaison).
But wait . . . “What the dickens,” many of you might ask, “is the Professional Vitality Committee? I knew it as the Professional Wellness Committee, with its sub-group the Transitioning Lawyers Commission, as it was last year.” Well, that’s a timely question and it will be a privilege to be your tour guide on the exciting journey on which this committee is embarking.
From wellness to vitality
But before we set out, a bit about the re-christening of this committee. Referring to the theme of the Annual Meeting, which centered on Professional Wellness, President LeAnn Nease Brown summed it up with characteristic eloquence:
“We are in a profession of helping others but to help others, we must take care of ourselves. Last year, President Grant combined our committees focusing on Professional Wellness. This year, Erna Womble will chair the committee with a focus on the well-being of legal professionals –from the beginning of career to winding down, to retired – not only on the stresses of the profession but on the joys of our life experiences: on living while lawyering. We have renamed the committee the Professional Vitality Committee because vitality is the state of being strong and active; it is the power of enduring, the capacity to live and develop. We celebrate the humanity of our profession, not only as lawyers and legal professionals but as parents and grandparents, musicians and rock climbers, hikers and stamp collectors, painters and poets, dreamers and dancers. Vitality is having the strength in ourselves and our community to have full lives as lawyers. Advancing the well-being of our members and our profession gives us wings.”
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Topics: We encourage relevant, timely articles on substantive cross-border legal issues and any others that may be of interest to the international legal community in North Carolina.
Length: All articles are limited to 300-400 words. For articles exceeding this world limit, the author may: 1) edit the article into one article of 300-400 words, 2) serialize the article into two or more articles, or 3) include an abstract of the article as the blog post with author contact information for the reader. The International Practice Section Blog Committee and the NCBA reserve the right to make final edits to the article before publication.
Process: If you believe that your proposed article meets the topic and length requirements set out above, please submit it to [email protected] with “NCBA International Practice Section Article Submission” in the subject line. A committee member will get back to you shortly with a publication decision and proposed publication date(s).
Thank you for your interest in publishing with us. We look forward to working with you!
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By Erna Womble