Being “Uber” Careful with Client Confidential Information

By Marilyn Forbes 

While the ubiquitous use of our cellphones allows us to make efficient use of travel time to talk with clients or about client matters, there is a new reason to be “uber” careful when conducting business while using ride services.

A fundamental rule of client representation is that we must keep our clients’ secrets. NCRPC Rule 1.6 (a) provides that a lawyer “shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) [which provides specific exceptions such as preventing the commission of a crime.]”  Additionally, and just as important, “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Rule 1.6 (c). This includes, among other things, being mindful of when and where you to talk to or about clients.

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When Tiptoeing Around the Securities Exemption to North Carolina’s Unfair and Deceptive Trade Practices Act, Take Each Step Carefully

By Stephen Feldman

North Carolina law prohibits unfair and deceptive trade practices, but not if those practices concern securities transactions.

The state supreme court announced this exemption in 1985 in Skinner v. E.F. Hutton & Co. The court expanded on the exemption’s reach in a 1991 decision called HAJMM Co. v. House of Raeford Farms, Inc. Thanks to these decisions, a plaintiff who alleges a violation of N.C.G.S. Section 75-1.1 about a securities transaction better have a sound argument on why Skinner, HAJMM, and their progeny don’t bar the claim.

This post concerns a recent North Carolina Business Court case called Beam v. Sunset Financial Services, Inc., in which the plaintiffs faced this situation and thought they had a winning game plan to sidestep these decisions.

Spoiler alert: it wasn’t a winning game plan.

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North Carolina Expands Civil Protections for Military Servicemembers

By Rick Conner

The North Carolina Servicemembers Civil Relief Act (“NCSCRA”), which took effect on October 1, 2019, expanded the rights of servicemembers and their dependents living in North Carolina.  The new law is codified in Article 4 of Chapter 127B, and can be found here.

The NCSCRA incorporates the federal SCRA (codified in Chapter 50 of Title 50 of the United States Code) into North Carolina law.  The federal SCRA, originally enacted in 2003 and amended several times since then, provides protections for members of the military who enter active duty, and covers issues such as rental agreements, security deposits, evictions, credit card interest rates, mortgage interest rates and foreclosures, civil judgments and proceedings, automobile leases, life insurance, health insurance, and income tax payments.

The NCSCRA expands beyond the scope of the federal SCRA by extending its protections to   include members of the North Carolina National Guard serving on active duty, and members of other states’ National Guard serving on active duty who live in North Carolina.

The NCSCRA also provides dependents (as defined in 50 U.S.C. § 3911(4)) of servicemembers some of the same rights and protections as servicemembers, including protections against default judgments, stays of certain proceedings including child custody, stays of certain fines or penalties under contracts, interest rate limitations, and tolling of statutes of limitations.

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Upcoming Events

By Alan Parry

Dear Members of the Litigation Section:
Our year is off to a great start, with enjoyable networking events in August (Chapel Hill) and September (Raleigh) that gave Section members an opportunity to catch up and socialize with other litigators, judges, and court staff. We plan to sponsor similar events in communities around the state and will keep you posted on upcoming opportunities for fun, fellowship, and CLE from the Litigation Section.

Next up, we will be back in the Chapel Hill-Carrboro area on Tuesday, Oct. 15, 2019, to host a casual evening social for our Superior Court Judges, who will be in town for the 2019 North Carolina Superior Court Judges’ Conference. Our social event will be at Vecino Brewing, located at 300 E. Main St. in Carrboro, and all Section members, judges, and significant others are invited. Please RSVP here to let us know you’re coming, and we look forward to seeing you there!

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Welcome To a New Bar Year: Come See Us in Chapel Hill on Wednesday

By Alan Parry

Welcome to a new year for the North Carolina Bar Association’s Litigation Section!  We have a lot in store for Section members this year, with a focus on social events around the state to give members an opportunity to network with other litigators, judges, and court staff.  We will, of course, continue to offer CLE on topics of interest to litigators, and we also hope that Section members will use this Litigation Section blog, both to stay abreast of events and developments and to publish their own articles and posts of interest.


NCBA Litigation Section Social
Top of the Hill Restaurant and Brewery
100 E Franklin St #300, Chapel Hill, NC 27514
Wednesday, Aug. 21,  5-6:30 p.m.
RSVP here.

There will be much more to come about the events and activities we have planned for Section members this bar year, but I wanted to drop a short note to introduce myself as the new Section chair and mainly to remind you about the first of our Section social events, which is coming up this week in Chapel Hill.  There is no formal program – just a great opportunity to meet and catch up with other Section members.  Drinks and appetizers are on us, and we hope to see you there!


How Corporate Counsel Can Push Back on Outside Counsel Guidelines by Citing the Ethics Rules







By Amy Richardson, Hilary Gerzhoy, and Lauren Snyder

In recent years, clients have begun to insist that their corporate counsel sign Outside Counsel Guidelines (“OCGs”) that restrict a lawyer from providing services to competitors of the client, even if the work is unrelated to the work being performed for the client and the lawyer has no confidential client information relevant to the work. Those OCGs have also begun to define the “client” as all subsidiaries, affiliates, or parent companies of the entity to which the lawyer’s services pertain. Both trends restrict a lawyer from representing a host of potential clients in the future. How can outside corporate counsel push back?
The two trends cited above directly implicate ABA Model Rules of Professional Conduct 5.6, 1.7 and 1.9.[1] By citing these Rules, and the restrictions they impose, corporate counsel may gain headway in negotiating more permissive OCGs.

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Supreme Court to Decide Whether Title VII Prohibits Discrimination Against LGBT Employees

By T. Cullen Stafford

On April 22, 2019, the Supreme Court of the United States granted certiorari in three cases involving the issue of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of an individual’s sexual orientation or gender identity. The Supreme Court’s decisions in these cases will resolve a long-standing split among U.S. appellate courts regarding whether federal law prohibits discrimination against gay, lesbian and bi-sexual employees.


There is currently no federal statute that expressly prohibits discrimination on the basis of sexual orientation or gender identity. Nearly every Congress since 1994 has introduced the Employment Non-Discrimination Act (“ENDA”), which would amend Title VII to prohibit such discrimination, but the statute has never been passed.

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The Advocate’s Award Goes To Legal Aid Icon Ted Fillette

The Litigation Section has honored Ted Fillette as the 11th recipient of The Advocate’s Award. Presented as merited, the award recognizes “superstars” of the section and the legal profession.

Ted Fillette, right, accepts The Advocate’s Award from Rick Conner.

Rick Conner, section secretary, presented the award during a Litigation Section networking event in Charlotte on Wednesday, Feb. 13.

Fillette retired last year following 45 years of service to the legal aid community in Mecklenburg County and the surrounding region.

Following graduation from Duke University in 1968, he spent two years working for VISTA. He then entered Boston University Law School and undertook an internship in the summer of 1971 in the Charlotte office of attorney George Daly.

Fillette returned to Charlotte in 1973 after graduating from law school. He joined Legal Aid Society of Mecklenburg County, which later expanded into a five-county program known as Legal Services of Southern Piedmont. Twenty-nine years later the organization split and Fillette joined the newly incorporated Legal Aid of North Carolina, where he served as assistant director of the statewide office and senior managing attorney of the Charlotte office.

Previous recipients of The Advocate’s Award are (2006) Charles L. Becton, (2007) J. Donald Cowan Jr., (2009) H. Grady Barnhill Jr., (2010) James T. Williams Jr., (2011) Alan W. Duncan, (2012) Charlie Blanchard, (2013) A. Ward McKeithen, (2015) James E. Ferguson II, (2016) Bill Womble Jr. and (2017) Janet Ward Black.

A longtime member of the North Carolina Bar Association, Fillette was featured in North Carolina Lawyer last year in conjunction with his retirement. The article follows here in its entirety:

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Court of Appeals Again Dismisses Appeal for Procedural Error

By Tara Muller

Civil litigators handling appeals: Beware. For the second time in less than a month, the North Carolina Court of Appeals dismissed an entire appeal due to an appellant’s failure to comply with the North Carolina Rules of Appellate Procedure. In WBTV v. Ashe County (4 Dec 2018, Dietz, J., unpublished), the Court of Appeals found substantial rules violations by a represented party, and it dismissed plaintiff’s interlocutory appeal without ever reaching the merits.

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Fourth Circuit Finds Gag Order Fails First Amendment Scrutiny

By C. Amanda Martin

Those who watch Fourth Circuit opinions already know this, but the court recently released an opinion ordering the Eastern District of North Carolina to vacate a gag order entered in ongoing litigation related to North Carolina hog farms. In addition to the importance of the core ruling – overturning the gag order – the Fourth Circuit’s opinion is a powerful statement about the importance of First Amendment rights and the need for trial courts to dot all the i’s and cross all the t’s before taking away those rights.

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